



PiiKSENTEl) BY 



{Jin Insei, September 1893.) 

New York, Dec. 8th, 1890. 
Fraitklin W. Smith, Esq., 

Hotel Brunswick, New York. 
Dear Sir : 

I have received the two pamphlets which you are good 
enough to send me, and which I have read with great interest 
and satisfaction. I do not think it was necessary to publish 
this Naval pamphlet in order to vindicate your reputation, but 
since you have published it, I am sorry that you have not 
mentioned the name of the official who caused you so much 
annoyance and loss. 

1 have also read the account of the Pompeian House at 
Saratoga with considerable surprise. I should very much like 
to see the museum, for such it must be; and if I should visit 
Saratoga, I will make a point of doing so. Mrs. Hewitt is also 
equally interested in the account, and we both thank you for 
having sent it to us and for your public spirit in reproducing so 
successfully a reminder of past ages. 

.-...^ Yours sincerely, 

iU^i'-.--^/^^'^^^^^ I . {Sl'jned.) AbRAM S. HeWITT. 




New York, Feb. Mtli, 1892. 
Franklin W. Smith, Esq., 

St. Augustine, Fla. 
My Dear Sir : 

You are quite at liberty to use any letter of mine in any 
publication you may see fit to make. No one at this late day 
attributes any unfair motives or action to you. In numerous 
transactions which my firm had with you prior to the war and 
during its continuance, your integrity was never doubted, and 
every obligation was rigidly fulfilled. I really cannot under- 
stand why you should any longer feel sensitive on the subject, 
although you suffered a very great injustice, and I suppose it 
can never be repaired. 

With kind regards, 

Sincerely yours, 

(Signed,) AbRAM S. HeWITT. 



■0 



> 



in the 

^cjalnst 

f ranfelin W. Smtti) 



OU i^.crst0rt— i:86X-T665. 



Hon HC Lodge 
Je. 16 06 



in tte 

%t, S. Ma^ department 
f mnfeltn W. ^mtti) 



A Record of Flagrant Abuse of the 
War Power in the late Civil War. 



"is there no danger that it may be used to subserve the 
"' Purposes of Malice and Revenge? Let the Case op Smith 
•'Brothers Give a Most Emphatic Answer." 

Lecture to Harvard Law School, January, 1867, by Hon. Joel 
Parker, Law Professor in Harvard and Dartmouth Colleges. 



" The First and Principal Misprision is the Mal- Administration 
"OF High Officers, who are in Public Trust and Employment." 

"A Conspiracy to Indict an Innocent Man op Felony Falsely 
"AND Maliciously, who is Accordingly Indicted and Acquitted, 
"IS A Further Abuse of Public Justice, for which the Conspira- 
"tors were by the Ancient Law to Receive what is Called the 
"•ViLLENous* Judgment, viz., to be Discredited as Jurors and 
"Witnesses; to Forfeit their Goods and Chattels and Lands, 
"for Life; and to have their own Bodies Committed to Prison." 

— Blackstone's Commentaries. 



Extract from an Editorial in the " New York 
Journal of Commerce," January 2oth, 1866. 

" Mr. Franklin W. Smith is a well-known merchant of the city 
of Boston. Boston is the principal city of Massachusetts. Massa- 
chusetts is the principal State of New England. New England 
governs the United States for the present. The United States 
compose a country distinguished as the patron of justice, and the 
paradise of free principles. This is the 19th century. 

"All these facts must be carefully borne in mind, lest any one 
should imagine that it is a romance which forms the subject of 
this article. 

"We have before us a pamphlet of sixty-one pages, being the 
report of a special committee of the Boston Board of Trade, which 
vouches for the truth of the story it contains. The statements in 
the pamphlet are signed by the following names : W. B. Spooner, 
Charles G. Nazro, Charles O. Whitmore, Otis Norcross, James 
C. Converse, Joseph M. Wightman, Lorenzo Sabine. These will 
be recognized by many as the names of highly respectable mer- 
chants in the said city of Boston, State of Massachusetts afore- 
said. They are men of truth and veracity." 

# * * * * 

" Mr. Sumner and the Board of Trade make it clear enough 
that Mr. Smith was the victim of persecution on the part of the 
government officials." 

" Let us find a lesson in all this. The Boston Board of Trade 

has done well to print such a pamphlet." 

***** 

" Reparation can never be made for these wrongs. The 
national debt doubled would not suffice to make due return. 
Money can never do it." 



** This is indeed a strange history to be enacted in this loyal com- 
monwealth, where the courts of justice are in peaceful operation 
and the laws obeyed with cheerful alacrity; but it is one only of 
the many illustrations, with which history is full, with what facility 
in times cf great civil convulsions, the highest functions of gov- 
ernment are used by subordinate agents to accomplish personal 
ends under the guise of public justice." Hon. B. F. Thomas, 
(late Judge of the Sup erne Court of Massachusetts and member 
of Congress from Boston^ upon the case of Franklin W. Smith. 



^ 



^ 




I^E/EIFj^TOI^.'Y" 



Letter prom Hon. H. L. Dawes, U. S. Senator from 
Massachusetts, to Franklin W. Smith. 

PiTTSFiELD, Mass., August 20, 1889. 

My Dear Sir — I am in receipt of your communica- 
tion in reference to the court-martial proceedings insti- 
tuted against you during the war. I am reminded by 
it of a long delayed duty. Of those to whom your 
long and honorable career as a business man is known ; 
who were familiar at the time with that transaction, 
and had occasion and opportunity to know its animus, 
few are now living. I was in Congress at the time, 
a,nd with my then colleagues, was called upon to 
make myself familiar with all its details, and with 
the result most honorable to you. I have wondered that 
you have not published to the world the entire record, 
with Mr. Lincoln's endorsement upon it, in his own 
hand-writing, of his estimate of your integrity and his 
trenchant words dismissing the case. 

I write this because, those who instituted the pro- 
ceeding, and the great President who condemned it, 
and those of my colleagues, who with me specially 
examined it, are all dead. I think I ought to leave on 
record the opinion which I then formed, after an ex- 




11 

haustive examination, and in which I know the entire 
Massachusetts delegation in Congress at the time shared, 
of the outrageous and unjust character of the whole 
proceeding. This examination was made by Mr. Sum- 
ner and the late Hon. B. F. Thomas and myself for the 
delegation. 

It is true that in the exciting times of the war, when 
large transactions were often from necessity carried on 
in a hurried and careless manner, and when bad passions 
were rife and ugly purposes were engendered, a prose- 
cution by court-martial was instituted against you ; at 
the time a large contractor for supplies for the navy. 
Courts-martial were then so frequent and resorted to 
so often for sinister ends that it came to be a saying 
that "Courts-martial are organized to convict." This 
one conducted the trial in a manner and with a relentless 
pursuit which, looked at from the standpoint of these 
calm times, would be pronounced brutal by all fair 
minded men. 

It not only seized the accused by military force but 
entered his private dwelling and carried off all his 
private as well as business papers, even breaking locks 
and possessing itself of the letters that had passed 
between him and his wife. It examined, as with a 
microscope, every item of a business with the govern- 
ment, covering several years and twelve hundred thou- 
sand dollars, searching for fraud as a hunter pursues his 
game, and after months of such a trial of such varied 
and complicated transactions, they could only find, and 
that on technical grounds, that the government had been 
defrauded in the sum of one hundred dollars. When 
this record came up to Mr. Lincoln for approval, he set 
it all aside in words endorsed on its back, which carry 
with them the highest testimonial to your integrity. 



Ill 

The result made it clear to every judicial mind which 
examined it, that the prosecution was instigated and 
pressed, because your straightforward ways interfered 
with questionable methods of transacting business, and 
their success rendered your removal necessary. I have 
good reason to know that Secretary Welles himself 
became convinced of thi«, and deeply regretted that he 
had unwittingly been made the instrument of such 
injustice. 

I am glad of tfee opportunity to furnish you with this 
statement, and remain as ever, 

Truly, yours, 

H. L. DAWES. 



It is with pleasure that I respond to the suggestion 
of Senator Dawes, by this publication of a personal 
experience during the War of the Rebellion — the full 
history of which was prepared more than twenty years 
ago to be issued in the event of my decease. Inasmuch 
as I have been mercifully spared to see the maturity of 
a new generation, (while almost all of those who sought 
my destruction have been called to their final account,) 
this recital becomes a duty, since few now living are 
cognizant of that case. It is therefore revived, in order 
that partial or erroneous statements relating thereto may 
be avoided; as well as the grave responsibility attending 
the utterance of such statements.* 

In abnegation of personal feeling toward my perse- 
cutors ; burying bitter memories of them in their graves, 
I suppress their names ; and tell the story from official 
and public documents. These are indisputable, impar- 
tial and final. 

* I am advised by eminent counsel that anj^ distorted or injurious men- 
tion of this history exposes the author to severe legal retribution. 



IV 

The Report of the Boston Board of Trade in review 
of the case, and the paper of Senator Sumner to Presi- 
dent Lincoln, quote a threatening letter from the chief 
of a Naval Bureau. It is known as " the-dead-cock- 
in-the-pit" letter. Vide p. 51 and Addenda III. 

The writer of the Report submitted to me whether 
the name of the author of the letter might be suppressed. 
I assented to the erasure — but with keen remembrance 
that he had aimed a deadly assault upon my own. 

The following statement is a slight compensation for 
the injustice recited; for, while many may be conscious 
of integrity, there is no instance of its vindication 
against the war-power and treasury of the National 
Government, wielded with like desperation and malign- 
ity. Personal satisfaction at the defeat of this onslaught 
is of slight importance compared to its public relations : 

First. Toward protection of witnesses summoned by 
Congress, against the revenge of officials implicated by 
their testimony. 

Second. As a warning against the surrender of civil- 
ians to military power. 

The seriousness of the above considerations was recog- 
nized in consequent repeal by Congress of the law which 
permitted the outrage ; and it has given to the case of 
the U. S. Navy Department m. Franklin W. Smith the 
historical status of a cause celehre. 

The Act of Congress of July 17, 1862, provides that 
" any person who shall contract to furnish supplies of 
any kind or description for the army or the navy, he 
shall be deemed and taken as a part of the land or naval 
forces of the United States, for which he shall contract 
to furnish said supplies, and be subject to the rules and 
regulations for the government of the land and naval 
forces of the United States." 



The Report of the Boston Board of Trade upon the 
case of Franklin W. Smith comments upon this legisla- 
tion, as follows : 

"The committee quote the act of Congress and say, 
that upon the construction which has been given to it 
they do not see why every person who contracts to fur- 
nish a lump of chalk, for the use of the army or navy, 
is not liable — on offence to some official personage — 
to a trial by court-martial. Hi ^ ^ 

This is unconditionally monstrous. No trial by jury!" 
% * * % * 

" ' I will maintain as long as I live,' said Dupin, the 
great French advocate, ' that the condemnation of Mar- 
shal Ney was not just, for his defence was not free.' 
Can there ever be Sifree defence for a civilian arraigned 
under the act of July 17, 1862 ? 

"We have read that Niceron, a merchant, and the 
agent of commercial companies in Paris, was committed 
to the Bastile simply for remonstrating against a pro- 
jected monopoly in the article of whale oil ; so, too, we 
have read that the Star Chamber imposed a fine of 
£2,000, sterling money of the realm, on .Chambers, a 
merchant of London, for refusing to pay poundage and 
tonnage, and for saying that ' merchants were more 
screwed up and wronged in England than in Turkey. 

" The sixteenth section of the act of Congress of July 
17, 1862, as relates to a class of citizens in civil life, re- 
vives the Bastile and the Star Chamber. Nay, more ; 
overleaping eighteen centuries of Christian civilization 
at a single bound, it goes back to heathen Rome and re- 
vives maxims of Caesar, that ' arms and laws do not 
flourish together; ' that ' war will not bear much liberty 
of speech.' 

"We measure our words; for, aside from our own 
reputation, this Report, if accepted, will become the 



VI 

judgment of this Board, and a part of the commercial 
history of Boston. We measure our words. Seldom in 
legislation has there been a more terrible, a more appall- 
ing mistake, and the very member of Congress who re- 
ported it in bill to the House, magnanimously owns it 
now, and, on the second day of March, 1865, stood up in 
his place and confessed his error. 

In the U. S. Senate, February, 1865, in debate upon 
the prosecution of Smith Brothers, under the above law, 
Hon. John P. Hale, Senator from New Hampshire, spoke 
as follows : 

Hi , Hi Hi Hi Hi 

" Sir, it is impossible for me to scan the motives of 
men ; it is enough for me to deal with my own ; but, 
standing here under all the responsibilities which attach 
to me — fond as any man of what little reputation be- 
longs to me — careful of my word, I think, as most men — 
I aver before the Senate, before the country and before 
God, that I have not a shadow of doubt that the sole 
offense for which Mr. Smith was arrested was the evi- 
dence that he gave upon the occasion." 

In a subsequent debate, March, 1865, Hon. H. L. 
Dawes, of Massachusetts, upon the same subject, said : 

" I do not say why this unjustifiable course was pur- 
sued toward these men. I only say that it happened 
immediately after they had testified before an investi- 
gating committee of Congress, in reference to certain 
frauds that had come to their knowledge, very near the 
doors of certain naval officials. Now, sir, I submit that 
it is time for us to act." 

Hi Hi Hi ^ * 

Mr. Davis, of Maryland, moved as follows : 
''That no person shall be tried by court-martial, or mil- 
itary commission, in any State or Territory where the 



VII 

courts of the United States are open, except persons 
actually mustered in the military or naval service of the 
United States, or rebel enemies charged with being 
spies; and all proceedings heretofore had contrary to 
this provision are declared vacated." 

Mr. Dawes, of Massachusetts: 

"Mr. Chairman, I believe that, during the time I have 
served in Congress, I have, to the extent of my ability, 
devoted myself to the effort to ferret out and punish those 
who have been engaged in defrauding the Government." 

H: Hi H: H: H: 

"In carrying out what I was endeavoring to do, I, in 
co-operation with others, reported to the House a Bill 
which became a law, making contractors with the Gov- 
ernment subject to trial by court-martial. I was aware 
that it was an extreme measure. In putting into the 
hands of the officers of the Government this extreme 
power, I had confidence that they would exercise it with 
moderation and reason. But, Mr. Chairman, I am sorry 
to say, that my observation of the administration of that 
law, of which I take to myself some part of the responsi- 
bility, has been such during the past year or two as to 
compel me to support this amendment. Sir, we seem to 
have lost sight, in the execution of that law, of the 
guarantees of the Constitution. 

"It is because . had a little something to do with 
furnishing the Department with this artillery which 
they have turned so much upon the people of the North- 
ern States, and so administered as to become the potent 
instrument for trampling upon the rights of the citizens, 
that I have ventured to raise a protest against the very 
Bill I reported myself, that has been perverted from the 
honest use for which it was enacted by the last Congress 
of the United States, and to ask the House to do this 
much and this little for the protection of our citizens." 



"^IV. 



VIII 

Charles Sumner wrote to President Lincoln con- 

isning the violence of Navy officials toward Smith 
Brothers, as follows : 

" I am not astonished that these proceedings were used 
in the House of Representatives as an argument for the 
total repeal of the act of Congress authorizing the trial 
of civilians by courts-martial. Such a case as this must 
make us fear, that under this act, j astice may be sacri- 
ficed. It must make honest merchants hesitate to enter 
into business relations with the Government." 

Hon. Joel Parker, Law Professor of Harvard College, 
at his retirement in 1866 for age, delivered a valedictory, 
course of lectures upon the Executive, Legislative and 
Judicial Functions of the U. S. Constitution, which were 
published. 

In the first he cited three instances of atrocious abuse 
of the war power during the rebellion, giving the case 
of Smith Brothers pre-eminence. He declares that 
^Hhese gentlemen were prosecuted because they refused to 
participate in frauds in the Navy Department. ^^ 

Horace G-reely wT^ote in the N. Y. Tribune : 

"The celebrated case of Franklin W. Smith and 
brother was one of those which largely helped to bring 
military tribunals into public contempt." 

After the vindication of Smith Brothers by President 
Lincoln, the tyrannical law was repealed. Thence after- 
ward the zeal of chiefs of bureaus subsided, and parties 
against whom allegations had been made by a Com- 
mittee of the U. S. Senate upon their testimony were 
undisturbed by civil process. 

War is merciless. Its miseries do not culminate in 
the aggregate slaughter of armies. Its demoralization 
awakens avarice, deadens sympathy, hardens conscience 



IX 

and lowers the standard of public morality. In the din 
of its conflict and the intensity of its anxieties, conspi- 
racy steals forth ruthlessly ; its steps unheard and its 
plots unnoticed. Thence follow crimes unseen and 
cruelties unknown. 

Power delegated for National deliverance reaches bad 
hands and is turned to tyranny. If, herein, atrocities 
have been recorded, to stimulate future jealousy of 
military absolutism and watchfulness of its administra- 
tion, this experience of its abuse will not have been in 
vain. Individual persecution will have contributed to 
future public protection. 

F. W. S. 




10 

EXTRACTS FROM PUBLIC DOCUMENTS, 

1 862" 1 865, 

In Relation to the Case of 

THE U. S. NAVY DEPARTMENT 

against 

FRANKLIN W. SMITH. 



PART FIRST. 

Reform of the old Contract System through the 
Effort of F. W. Smith. 

Upon the election of Abraham Lincoln to the presi- 
dency of the United States the hardware house of Smith 
Brothers & Co. made their first tenders for supplies to 
the Navy Department. 

On the 24th of February, 1862, and before the fulfil- 
ment of his first contract, Mr. Franklin W. Smith 
addressed a printed paper to the Chief of the Bureau 
of Yards and Docks, in argument that the contract 
system as then existing, opened facilities for gross 
wrong upon the government. This paper, with others 
hereinafter mentioned, may be found in the Report of 
the Select Committee on Naval Supplies of the United 
States Senate of July 4, 1864. 

The following extracts will indicate its tenor : 
" Having decided to attempt some government con- 
tracts we analyzed the published reports of the department 
in previous years to discover the modus operandi. We 
were astonished that a system that left such records of 
bargaining could have been so long maintained. 
* i^ * ^ :ji 



11 

" We (Smitli Brothers) shall be glad to aid in any 
effort to replace the system by one far more agreeable to 
those who would be honorable competitors for govern- 
ment business." 

% ^ T? Tf T» 

On the 10th February, 1863, he addressed a printed 
paper to the Secretary of the Navy and Mr. Sedgwick, 
Chairman of the Committee on Naval Affairs, proposing 
a remedy for the discreditable system hitherto existing 
by law ; extracts from which are as follows : 

PAPER TO THE SECRETARY OF THE NAVY AND 
HON. CHARLES B. SEDGWICK. 

Washington, February 10, 1863. 

The bill before the House proposes to remedy evils in 
the contract system of the Navy Department that have 
existed for many years. The disadvantages that have 
followed to the government have been inherent in the 
system itself. In two bureaus of the department a sys- 
tem of proposals by advertisement has been maintained, 
that in result was a mere matter of chance to the re- 
spective parties. Thus in the Bureau of Yards and 
Docks it hag been customary to advertise for a great 
variety of articles which were only to be called for if 
wanted. The chance, therefore, for the bidder to calcu- 
late upon is, what articles will he wanted .^ 

% :fc % * * 

If the contracts of the department, as published for 
years past, be analyzed, it will be found that a system 
of bidding has been maintained by which the merchan- 
dise advertised has been offered to the government at very 
much less than its value in the market ; the bidders hav- 
ing calculated according to their estimate of the real wants 
of government. The law has required that the lowest 
bid, in aggregate upon the whole, should be accepted. 



12 

The merchant, therefore, who would approach the 
government with his offer, must follow these old prece- 
dents or be entirely distanced by his competitors. 

Honorable mercantile houses have desired and urged 
a reform in the system that would place the transactions 
of the department upon a more legitimate basis to all 
parties concerned. 

H: Hi Hi H: Ht 

THE REMEDY. 

The bill reported by the committee is an advance 
towards remedying the evils of the system. In two of 
its provisions, however, in my judgment, it is defective : 

First. By providing that there may be an increase of 
yiftp per centum or a decrease of twenty -five per centum 
upon the quantities advertised, the game of chance is 
still open. 

Let the Navy Department, as the War Department, 
advertise for precisely what is to be received ; no more, 
no less. There can then be no " nominal prices." They 
will disappear; for the merchant will know that the 
merchandise described is to be furnished. If the War 
Department wants 100 ambulances and 200 wagons, 
they contract for and demand like quantities as adver- 
tised. There is no chance to estimate that there may 
be delivered, under the contract, 50 ambulances and 500 
wagons. The War Department, therefore, receives no 
bids at '' nominal prices." 

If the Navy Department is uncertain as to its want 
of some articles, let them be bought when the demand 
shall arise. It can buy in open market, or it can direct 
its agents to advertise, at .any time, for one day, or 
one month, for any additional articles that may be 
demanded. 



13 

If the schedules, as contracted for, are being rapidly- 
exhausted, the department can, before the contracts 
expire, advertise for more merchandise, by the provision 
of the bill of the committee. 

Second. Having thus effectually removed all occasion 
or opportunity for nominal prices, the clause allowing 
the rejection of bids for nominal prices can be omitted. 
It gives an opportunity for unfairness by an arbitrary 
decision, as to what is a nominal price. One merchant, 
perhaps, by unusual facilities possessed, may afford to 
supply articles less than any other parties. The govern- 
ment would suffer, and the merchant be wronged, if the 
bid were to be rejected because the price appeared too 
cheap. 

The amendments to the resolution suggested by the 
above are — 

Fwst. The omission of the clause allowing variations 
from the quantities advertised. 

Second, The omission of the clause allowing the 

rejection of bids for nominal prices : because, if the 

quantities are fixed as above mentioned, there can he no 

nominal prices. 

Respectfully submitted. 

FRANKLIN W. SMITH. 

Hon. Chas. B. Sedgwick, 

Chairman Committee on Naval Affairs. 



14 



Letter to Hon. D. W. Gooch, M. C, from Massachu- 
setts. Printed in U. S. Senate Report : 

New York, February 12, 1863. 

My Dear Sir : I am glad to notice by the papers that 
the resolution concerning contracts was recommitted 
after debate, as I feared my suggestions were quite too 
late. 

We have really no pecuniary interest in the amend- 
ments suggested ; for it is impossible to estimate whether 
the bill with or without them will be most favorable 
to our profit, if we make further contracts. My motive 
in the effort made was, sincerely: firsts for the good 
of the government; second, that it might appear that 
all merchants who became contractors were not inevi- 
tably, because in business connexions with the govern- 
ment, — selfish sharpers. 

The record we have made to date is a clear one; we 
are content to be judged by it. I regard it as most for- 
tunate that, without knowledge that any such legisla- 
tion was pending, it happened in my way to place our 
record with the Naval Committee. 

If in the course of the debate sweeping animadversion 
may be made upon contractors under the system hitherto, 
your sentiments of fairness, regard for the fame of Bos- 
ton merchants, and (may I presume!) your confidence in 
the undersigned, may prompt you to speak in reply. 

With reference to " nominal prices," upon which so 
much is said, this is our reply : We were compelled to 
use an old system, provided by law, as it long had been 
used and accepted by the department, or retire from the 
competition. 



15 

If all houses who would be honorable dealers with the 
government thus retired from the held, the government, 
with a bad system, would be entirely in bad hands. 

We did our part, as soon as we comprehended the evils 
of the system, in recording our regret that they existed, 
and our desire for their remedy. 

With a renewal of thanks for your courtesy, 

I am yours, respectfully and truly, 

FRANKLIN W. SMITH. 

Hon. D. W. GrOOCH, Washington, D. C. 

Through the concurrent effort of Hon. Messrs. Gooch 
and Sedgwick, and in accordance with the recommenda- 
tions of Smith Brothers & Co., the joint resolution 
approved March 3, 1863, which was in place of that re- 
committed in February, provided that " every contract 
shall require the delivery of a specified quantity." 

This requirement of the law, that the Navy Depart- 
ment should contract for fixed quantities, caused nominal- 
prices to disappear at once from the bids upon the next 
proposals for supplies. 

Thus, as was remarked to Mr. Sedgwick, " paradoxi- 
cal as it may appear to some minds, contractoo^s have 
been reformers." 



16 



PART SECOND. 

Farther Efforts of Franklin W. Smith to Improve 
THE System for Purchase and Protection op Naval 
Supplies. 

[ Correspondence — Senate Report, p. 22. ] 

Navy Agent's Office, 

Boston, December 1, 1863. 
Franklin W. Smith, Esq. : 

Sir — In a communication, under date of the 17th 
ultimo, Hon. Charles B. Sedgwick, Commissioner of the 
Naval Code, expresses a desire to obtain from " gentle- 
men practically acquainted with the subject," informa- 
tion as to "the best and most economical mode of pur- 
chase of supplies for the navy, and the one most likely 
to protect the government from fraud." 

Among others, he submits the following questions : 

FirsL " Whether the present contract system might 
be modified and changed so as to avoid objection and 
prevent fraud." 

Second, " Whether any more thorough and strict 
system of inspection and accounting for supplies and 
material purchased ought to be adopted to secure the 
department against imposition." 

I should be glad to have you state your judgment 
upon these questions, to be inclosed to the Commissioner, 
as suggested by your observation and experience during 
the period of your business relations with the depart- 
ment. 

I am, sir, very respectfully. 

Your obedient servant, 

E. L. NORTON, Navy Agent, 

Franklin W. Smith, Esq., Boston. 



17 

Boston, December 11, 1863. 
Hon. E. L. Norton : 

Sir — I respond with pleasure to your request for the 
statement of my judgment upon inquiries submitted by 
the Commissioner of the Naval Code, viz. : 

First. "Whether the present contract system might 
be modified and changed, so as to avoid objection and 
prevent fraud." 

Second. " Whether any more thorough and strict 
system of inspection and accounting for supplies and 
materials purchased ought to be adopted to secure the 
department against imposition." 

" The joint resolution regulating contracts with the 
Navy Department," approved March 3, 1863, provided 
" that every contract shall require the delivery of a spe- 
cific quantity." This was a decided reformation of the 
old system for unlimited supplies, upon the lowest 
aggregate bid upon a quantity ; which left upon the 
published report of the department, for several years, 
such absurd records of government bargains. 

In a communication addressed by me to the chairman 
of the Committee on Naval Affairs, in February, 1863, 
the prediction was made that if the Navy Department 
would advertise for " no more and no less " than the 
quantity to be received under the contract, fictitious 
and excessive prices, which had been an evil and a 
reproach, would disappear. Existing contracts for spe- 
cific quantities, executed under the present law, dem- 
onstrate the truth of the assertion. By this reform, 
therefore, the most prominent evils of past years have 
been removed. 

Yet additional safeguards of law, scrupulously ap- 
plied by the authorities, are requisite before the confi- 
dence of the community can be commanded, and before 



18 

there can be certainty tliat the obligations of contract- 
ors are faithfully fuJlilled. 

These safeguards are required as to the following 
questions : 

First. Is there assurance to the public of absolute 
fairness in the reception of bids and award of contracts ? 

Second. Are the schedules of merchandise for which 
bids are invited sufficiently explicit in the description 
of merchandise to be furnished ? 

Third. Is the system for the receipt of merchandise 
so systematically protected that government cannot be 
defrauded in quantity or quality ? 

For satisfaction to the mercantile community upon the 
first inquiry above suggested, it must be known that 
all preliminary arrangements for the award of contracts 
are scrupulously guarded against collusion of clerks 
with favored parties, and against inaccuracy in compu- 
tations or irregularity in the form of bids. 

The advertisement for proposals should state that the 
opening of bids (no longer, as formerly, in secret with 
chiefs and clerks of bureaus) is by law provided to be 
in the presence of bidders. 

Bids should be received in closed safes prepared for 
the purpose, secured against all inspection until the hour 
of opening named in the advertisement. Then, in pres- 
sence of the competing parties or their agents, they 
should be withdrawn, sorted and stamped with a seal 
privately retained by chiefs of bureaus for the purpose.. 

No bids should be received after the hour of opening. 

Bids should not be indorsed with the numbers of th& 
classes named within them. 

{From such indorsements it may he learned hy clerks that 
there are no bids for certain classes ; and through collusion, 
exorbitant prices may he named for said classes. It is believed 



19 

that in the case of certain contracts where enon'mous prices 
were obtained, such wrongful advantage must haw been em- 
ployed.) 

All bids containing erroneous computations, omissions 
of prices for any articles, figures or writing in pencil, or 
having other suspicious appearances or informalities, 
should be rejected. 

{Bids haw been received containing several arithmetical 
errors, but all against the government; wherein, while prices 
have been exorbitant, the extensions have been minus, and 
the aggregate the lowest. It is a discreditable fact that such 
bids have been actually executed in contract. Ordinary 
mathematical calculations, in private life made sure with the 
grocer and baker, have passed the inspection and notice of 
government offices, grossly erroneous; the result of these 
errors being in such loss to government and such gain to the 
contractor as to suggest that they could not have been in all 
intents Mis-calculations.) 

The opening of bids should be at a continuous sitting 
if practicable. 

If adjournment be necessary, unopened bids should 
be secured from inspection of all parties in the interim. 

Examination of computations and forms should be 
made only in the offices of the department ; and for no 
purpose whatever should bids be removed therefrom 
until contracts have been executed. 

(Instances have been remarked where bids for different 
"yards have been taken by clerks to their homes for examination.) 

These details are by no means over-cautious in trans- 
actions which involve not only large expenditure of 
money, but the good faith of government toward the 
people. Officers who have in charge such important 
business interests should not be satisfied merely with their 
own belief that there is no wrong committed. They 



20 

should be eager to arrange evidence for the public, that 
no wrong can he committed. 

^ -jC tC T? »fC 

Thirdly. Is the system for the receipt of merchandise 
so systematically protected that government cannot be 
defrauded in quantity or quality ? 

Thii is a question vital to the interests of the government 
under any system of purchase. No fairness of price, no 
high standard of quality, can compete against the 
fraudulent collusion of dishonest traders with weigh- 
masters and receiving clerks. 

Suspicions have long existed as to the prevalence of 
this style of robbery in navy yards. Indeed, it is fre- 
quently remarked, as an irremediable evil, that govern- 
ment must be robbed to some extent in the delivery of 
merchandise ; because it is inevitable that there will be 
some dishonest men. Yet because of this extraordinary 
exposure to wrong, extraordinary protective and detective 
measures, are demanded at the hands of executive officers 
in the departments. A system should be devised so 
thorough in its checks and counterchecks, that rogues 
cannot disarrange its machinery without being caught 
in its traps. 

I do not hesitate to state as my belief, based upon 
unusual facilities for judgment, that there is not at pres- 
ent a system in navy yards sufficiently protective against 
short weights and measures. 
Doors are open which should be closed and doubly locked. 

There are means for the perpetration of this wrong, 
without and beyond the knowledge of the naval store- 
keeper, who may be honest meanwhile in the exercise 
of his functions. I am aware this is an important state- 
ment. It is made in full conviction of its importance 
and its truth. 



21 

It must be entirely practicable to remedy all exposure 

to this evil, and, through enterprise and ingenuity, not 

only to devise an effective system of protection against 

fraud in the delivery of merchandise, but to insure its 

faithful execution. 

Hi % H: Hi Hi 

The Bank of England, in its internal admiidstration, 
is like an apartment walled with mirrors ; each action 
therein is reflected in various directions to the observa- 
tion of others, as honest or dishonest. 

When the Navy Department is developed upon so vast 
a scale as to require an appropriation of $140,000,000, 
like precision in system will be required to afford pro- 
tection to government. As additional security to the 
present system, I venture the suggestion that there should 
be in every navy yard a naval store receiver, as well as naval 
storekeeper. 

Hi Hi Hi Hi Hi 

When such reforms as these, above detailed, are ap- 
plied in the administration of the bureaus and at the 
yards, it will be difficult to show objections to a contract 
system, or opportunities for fraud in purchases by either 
contract or open purchase. 

It is possible that the suggestions herein submitted 
may be regarded as intrusive by some to whose official 
functions they have special relation. 

Yet it may without presumption be assumed that the 
business transactions with the department of the house 
of which the writer is a member, amounting to more 
than a million of dollars, and demanding of him during 
two years almost daily visitation of the workshops and 
offices of the navy yard, involving the supply of a great 
variety of articles entering into consumption and use 
throughout the mechanical departments and on ship- 
board, ought to have furnished to a merchant facilities 



22 

for judgment as to the system in practice entitled to 
some consideration. 

Faithful officers of the government who would vigi- 
lantly guard its interests and exact its claims will invite 
the thorough scrutiny and welcome the respectful sug- 
gestion of citizens, as zealous as themselves for the wel- 
fare of government, and contributing, perhaps, as much 
to its support. 

An ex-President of the United States has said: "It is 
a condition for the enjoyment of liberty that our rulers 
be narrowly watched. It can never be long preserved 
without popular jealousy. It is a maxim of despots 
that the people should never inquire into the concerns 
of government." 

Transactions with government have been subject to 
such general suspicion that merchants sensitive to their 
good name are reluctant to engage in them, exposing 
themselves to disparagement and scandal. Yet shall 
those of the mercantile community who would maintain 
their own integrity abandon the competition ? Or shall 
they enter the lists, to strive against temptation to 
themselves and for its removal from others ? 

The case seems to be this : rogues, as may be expected, 
approach government for business. Executive officers 
are not sufficiently expert for their detection; therefore, 
all who solicit government patronage are under distrust 
and suspicion. 

Again : it is not through the dereliction of citizen con- 
tractors alone that government may be defrauded. 
Evidence is on record that government employes, either by 
mal-intent or through inadvertence, have been as greatly 
in fault. Results may be known outside of government 
offices which are individual secrets within them. 

* Hi Hi Hi Hi 



23 

While, in compliance with your request, and under 
impression of the importance of the subject, I have 
frankly advocated amendment in details of administra- 
tion, it has been without the least impulse of disrespect 
for oflB.cers of the government or the disparagement of 
their services ; but for a record against evils from which, 
the business world believes our government to receive 
material injury. 

We improved the earliest opportunity after appre- 
hending the evils of the contract system (in 1861) to 
expose them to the department, remarking, "We shall 
be glad to aid any effort to replace it by one more dis- 
tinct in its demands upon the seller of merchandise, and 
therefore far id ore agreeable to those who w^ould be 
honorable competitors for government patronage." 

It was a gratification that opportunity occurred to 
press legislation for this purpose, and that reform was 
accomplished. During the subsequent period, as ob- 
servation informed of remaining facilities for wrong, 
impatience has been felt for their removal. 

At a time w^hen our government is engaged in an ex- 
haustive struggle for life, I have been compelled as a 
citizen to urge its protection against unfaithfulness in its 
service and fraud by those enjoying its patronage. 
I remain, sir, most respectfully. 

Your obedient servant, 

FRANKLIN W. SMITH. 



24 



PART THIRD. 

The Pamphlet op F. W. Smith, exposing Frauds in 
Contracts with the Navy Department. Its Inves- 
tigation AND Endorsement by a Special Committee 
OF THE United States Senate. The Plot for Re« 

VENGE. 

Letter to the Secretary of the Naxsy, with an analysis of cer- 
tain contracts of the Nany Department, as appendix to 
paper addressed to the commissioner of the naval code. 

[Privately printed for the Secretary of the Navy and the 
Committees on Naval Affairs of the Senate and House of Repre- 
sentatives.] 

Boston, January 29, 1864. 
To the Hon. the Secretary of the Navy: 

Sir : In the communication to the commissioner of the 
naval code, copy of which I had the honor to address to 
you on the 29th ultimo, reference was made to tho 
erroneous computations and enormous prices of certain 
contracts by which it was believed that the goverment 
had suffered loss. 

At that time the statement was fully warranted upon 
the personal knowledge of the writer. The suggestion 
of the existence of such wrong to the department was 
supposed by him to be the entire fulfilment of his duty. 
Facts which have subsequently been made public com- 
pel him now, in faithfulness to the country and to himself,, 
to place before you a more distinct statement of the 
case. 

The Boston Journal recently published a copy of one 
of these suspicious contracts — that, wherein $150 per 
dozen were paid for wrenches worth |10 to $15 per 
dozen. The writer of that article proceeds to explain 



25 

the transaction, "in justice to the Navy Department," 
as attributable to the system (formerly existing under 
law of 1885) of bidding at high prices and low prices, 
according to the quantities likely to be required. This 
theory was probably accepted from the speech of Senator 
Grimes (Cong. Globe, Jan. 9) but is altogether erroneous ; 
since all the prices were exorbitant, and the quantities 
limited under the act of March, 1863. 

It was also asserted that the bid was a fair specimen 
of the bids for every contract ; when, in fact, the con- 
tract mentioned (and others on record as bad) is ex- 
ceptional, extraordinary, and must have had a peculiar 
history. 

ih iii Hi Hi Hi 

Some contracts have appeared in the reports of the 
Ibureaus of an unprecedented character. The only ex- 
planation for them yet made to the public is incorrect ; 
in fact, their peculiar history is as yet a secret. In the 
absence of authentic statements, false and exaggerated 
theories are applied; scandal becomes excessive and 
Avide-spread. Suppressio veri, suggestio falsi. 

It is especially unjust that merchants who have had 
no part in wrongful acts should be defamed in mass with 
those who have committed them. If obloquy is to be 
scattered broadcast over all concerned with government, 
because of the dishonor of individuals ; if integrity is 
not to be recognized when found, and vindicated from 
undeserved suspicion and reproach, the business of the 
nation will be yielded entirely to those who care not for 
reputation, having none to defend. 

We are not willing to share with others, in the least 
degree, the imputations of wrong in our relations to 
government, but will rather make an effort to place the 
discredit where it belongs. 



26 

Upon our first movement for navy business, in 1861, 
we were repelled by records of the absurd bargains pub- 
lished in the reports of previous years. We were obliged 
to follow precedents established under the law, or retire 
from the competition. The evils existing could only be 
apprehended by tracking them over forbidding ground. 
We vigorously joined in the raid upon them, by which 
the most prominent of those evils were remedied. 

During the period when contracts could only be ob- 
tained by calculation as to quantities instead of values of 
merchandise, and consequently by bids of anomalous 
prices, we improved an opportunity to demonstrate by 
figures to the Bureau of Yards and Docks that the aver- 
age per cent, of profit to us did not exceed or equal a 
fair mercantile rate. We invite, and will aid in like 
manner, the utmost scrutiny of all our transactions with 
the department. 

The files of the bureaus, and the testimony of members 
of Congress from Massachusetts, will witness that we 
have advocated the remedy of abuses at once upon their 
discovery. The following pages will discover an onerous 
task assumed in this service. 

* * ^ % i^ 

In full confidence of your eager desire for the detec- 
tion and remedy of abuses in the administration of the 
Navy Department, and realizing that amid your most 
arduous and important services for the country you must 
necessarily be uninformed of such statements as are 
annexed, they are respectfully submitted to your con- 
sideration. 

I remain, sir, most respectfully, 

Your obedient servant, 

FRANKLIN W. SMITH. 
To THE Hon. Secretary of the Navy. 



27 

With this letter, Mr. Smith's pamphlet was presented 
to the Secretary of the Navy, in person, and in company 
with Hon. A. H. Rice, of Massachusetts. It was subse- 
quently printed in full in the Report of the Select Com- 
mittee on Naval Supplies of the U. S. Senate, July 4, 
1864, and quoted by Hon. John P. Hale in his speech in 
the Senate, in defence of the Report. 

The pamphlet was a mathematical analysis of certain 
contracts, covering thirty-eight pages, and with the an- 
nexed recapitulation : 
Statement of loss to government upon contracts analyzed. 

Amounts of the Excess in these contracts ahbve 

contracts as market rates, or prices on other 

awarded. bids at the same time. 

$11,860 00 $1,262 00 

16,060 00 3,250 00 

1,278 65 635 00 

652 50 405 50 

1,370 00 400 00 

4,807 20 1,000 00 

1,200 00 912 50 

6,545 00 581 00 

4,227 50 1,692 50 

8,054 00 2,265 00 

21,612 18 11,208 40! 

280 00 125 00 

1,400 00 300 00 

2,350 00 200 00 

9,760 00 1,760 00 

4,687 00 2,094 16! 



$96,144 03 $28,091 06 



Thus it appears that the government suffered, on 
awards of $96,144.03, the amount of $28,091.06, and by 
erroneous computations $4,476.99. Total $32,568.05. 



The analysis above, with the statement of aggregate 
loss to government, all apply to the aw^ards under ad- 
vertisements of Bureau of Construction and Engineer- 
ing of February, 1863, with the exception of one erro- 
neous computation from the Bureau of Yards and 

Docks. 

Awards in June. 

On the morning of the 24th of June, 1863, the Secre- 
tary of the Navy, acting upon special warning from 
Senator Sumner,* took measures for the protection of an 
opening of bids to be made that day. Several mercan- 
tile houses of Boston were by mutual arrangement rep- 
resented on the occasion. The opening was, according 
to their request, prosecuted through a continuous sitting. 
Bids were inspected, copies taken, etc., etc. The inter- 
esting revelations made at that time do not appear in 
the reports of the bureaus ; but were fully revealed sub- 
sequently in the Senate Report. 

The paniphlet above mentioned was referred by the 
Secretary of the Navy to Chiefs of Bureaus for examina- 
tion and reply. It received only acrimonious comments 
evasive of its figures and conclusions. To these replies 
Mr. Smith made a rejoinder. For the entire corres- 
pondence, Vide Sen. Report, pp. 44-60. 

Extracts prom " Rejoinder " of F. W. Smith to the 
Chiefs of Bureaus. 

^ tI % T? ^ 

" Charges such as these were not made without careful 
consideration. The evidence upon which they are based, 
after compilation from the Report of the Secretary of the 
Navy, was examined in detail by gentlemen, whose com- 
petent judgment of evidence would be admitted. 

*Through information from Members of Congress in Boston, communi- 
cated by F. W. Smith. 



29 

"After the paper was placed in type for greater dis- 
tinctness, the proof was submitted to a counsellor of this 
city, eminent for character as ability.* Upon a critical 
examination thereof, in connexion with the Secretary's 
Report, he pronounced it a conclusive statement of evi- 
dence, sufficient to prove the allegation to any intelligent 
jury beyond a reasonable doubt ; and furthermore de- 
clared it my personal duty as a citizen to place said 
paper with the Secretary of the Navy, that the serious 
wrong discovered might be thoroughly investigated. In 
this opinion of my duty members of Congress fully 
concurred. 

'' The unpleasant and, as might have been expected, 
thankless duty was performed." 

TC nC T? T» T» 

The statement closed as follows : 

"The above review of all points bearing upon the 
serious allegation which is set aside as 'hypothetical 
and imaginary,' leaves the evidence of its truth still 
unbroken and conclusive. The unanimous verdict of 
those to whom it is submitted successively for examina- 
tion (beyond those who assume an attitude of defence) 
is, that the facts collated sustain the charge. 

"I doubt not but that an intelligent jury, or a com- 
mittee of the Boston Board of Trade, would indorse the 
opinion of the legal gentleman under whose advice I 
have performed this unwelcome duty, viz : That the said 
' analysis of certain contracts ' proves, beyond a reason- 
able doubt, that certain contractors could not have 
obtained the extraordinarily profitable contracts in ques- 
tion through any mere chance of bidding; but that 
through information, by collusion, said results were 
obtained. 

*The late Hon. Edward S. Rand of Boston. 



30 

*' Besides, however, the internal evidence of the Report 
of the Secretary which the writer has collated, (at ex- 
pense of personal labor, time, and money, and exposure 
to resentful attacks,) there can he other collateral evidence 
to substantiate the truth. 

'* I cannot conclude without again soliciting your 
attention to the resentful disposition of the chiefs in 
reply. Their unw^arranted insinuation and weak satire 
will have full exposure in a subsequent paper. The 
communication which required their attention, so far 
from implying distrust of either of those functionaries, 
referred to them in terms of confidence personally, of 
respect for their ability, and consideration of their 
arduous labors. It was not, therefore, to have been 
anticipated that evidence of wrong within their offices, 
the suspicion of which, as was remarked to the writer 
by the Secretary, was not new in the department, would 
be set aside as ' hypothetical and imaginary,' and re- 
turned with angry recrimination. Yet, despite this 
ready dismissal by the bureaus, the importance of this 
evidence, in fact and inference, will remain. 
" I am, sir, very respectfully, 

" Your obedient servant, 

"FRANKLIN W. SMITH. 

"Hon. John P. Hale, 

" Chairman of the /Senate Select Committee on Naval 
Supplies, " ' 

Reports of these revelations, by Mr. Smith, reached 
Congress, and resulted in the appointment of a " Special 
Committee of the U. S. Senate," consisting of Senators 
Hale, Buckalew and Doolittle, to investigate them. 

On the 11th of February, 1864, F. W. Smith testified 
before this committee in Washington, and subsequently 
also at length, until the committee had placed upon re- 
cord every detail of his "Analysis of Certain Contracts." 



31 

The papers above mentioned and the testimony fill 
seventy pages of the " Senate Report," of which 8,000 
copies were ordered to be printed. 

The investigation of the committee lasted four months, 
until their Report on the 29th of June, 1864 ; making a 
volume of 231 pages. 

The following are extracts from the Report : 

^ H: ifc Hi H: 

"As public attention was first called to this subject 
directly by the publication of a series of papers concern- 
ing the purchase of naval supplies, with an analysis of 
certain navy contracts by Mr. Franklin W. Smith, of 
Smith Brothers & Co., a mercantile house in Boston, and 
as the matter then presented was deemed of sufficient 
importance by the Secretary of the Navy to submit the 
same to certain heads of bureaus in the Navy Depart- 
ment, and they severally made answer thereto, the com- 
mittee have decided to report the pamphlet before 
referred to, the answers of the chiefs of bureaus, and the 
rejoinder of Mr. Smith thereto, together with the evi- 
dence taken in the case, leaving the Senate to form such 
conclusion therefrom as the facts and allegations therein 
shall justify." 

" The committee will now present to the Senate certain 
statements of facts which they think the evidence by 
them taken will justify. They have confined themselves 
in their examination to recent occurrences, thinking that 
the latest transactions will afford the best evidence of 
the present state of affairs, and show most clearly what 
are the evils for which remedies should be sought." 

"In the first place, then, your committee start with the 
announcement that the investigations which they have 
made satisfy them beyond a doubt that, in the matter of 
naval supplies last year, the government has been grossly 



32 

defrauded by having to pay most exorbitant and enor- 
mous prices for very many of the articles procured by 
contract with the heads of several of the bureaus. They 
will submit a few of the more gross and palpable in- 
stances in support of this assertion, and suggest some of 
the means by which these frauds have been, or many 
have been, perpetrated." 

Here follow several contracts brought to light in the 
above "Analysis of Contracts, by F. W. Smith." 

T? ^ •!» "ii <^ 

"At a time like the present, when taxes are so high, 
and the burden of the war falls so heavily on the people, 
they have a right to expect and demand from those in- 
trusted with the disbursement of the public money fidel- 
ity, vigilance, and economy. 

" In conclusion, your committee submit the following as 
the result of the examination they have made : 

"1. In the matter of contracts for naval supplies last 
year, the -government has been grossly defrauded. 

"2. These frauds could not have been perpetrated 
without aid from those in the employment of government 
int he bureaus. 

" 3. These remarks apply to the Bureau of Steam 
Engineering, the Bureau of Construction, etc., and the 
of Yards and Docks." 

Views Submitted by Mr. Buckalew. 

* % * Hi Hi 

" 2. The undersigned concurs in the conclusion drawn 
in the report from the evidence, that in particular cases 
of contracts for naval supplies the successful bidders had 
information from the department with regard to the 
biddings, or assistance therein in arranging their bids 
to secure success. No other explanation of several of 
these contracts can be reasonably given." 

Hi Hi Hi Hi H: 



33 

" 3. This inquiry into this subject of naval contracts 
mainly arose upon an exposition of them by Franklin 
W. Smith, a merchant of Boston, and the evidence and 
papers herewith reported will show the thoroughness 
and ability with which his examination was made, and 
the particular replies on the different points given thereto 
on behalf of the department. The recriminations against 
him appear in the replies and in the testimony taken 
before the committee. There can be no question of his 
intelligence and capacity, nor would it be unreasonable 
to assert that the public are indebted to him for much 
of valuable information upon the subjects covered by 
this investigation. Since his examination before the 
committee, he has been arrested at Boston, it is believed 
at the instance of the Navy Department, upon some 
accusation or allegation of over-charge or imposition in 
furnishing naval supplies. It is to be hoped, for the 
credit of the government, that this arrest, following close 
upon his examination before the committee, will be fully 
justified upon due investigation and fair trial, and that 
the proceeding will be relieved from all appearance of 
persecution or vengeance." 

C. R. BUCKALEW. 

Immediately upon the publication of this Report, 
rumors of retaliation upon F. W. Smith, by officials of 
the Navy Department, reached Boston, and were brought 
in person by Hon. J. P. Hale, on his way to New 
Hampshire, who called at the warehouse of Smith 
Brothers, and said "The Navy Department will 
slaughter Franklin W. Smith." 



34 

A Preliminary Assault op the Navy Department^ 
IN THE U. S. Senate. 
On the 23rd of May, 1864, the Senator from Iowa 
spoke at length in reply to an adverse report by the Com- 
mittee on Naval Supplies, upon a proposition from the 
Navy Department, that purchases should be made by 
regular officers of the Navy, instead of Navy agents who 
were civilians. 



Extract from Correspondence of the Boston Daily 
Advertiser, June 8, 1864. 

" Our readers will observe that the Senator singled 
" out Mr." Franklin W. Smith of Smith Brothers & Co., 
" for his severest denunciation. In doing this the Sena- 
" tor did great injustice to the house in question. As to 
" the injustice, we will call attention to the letter by Mr. 
" Franklin W. Smith, embodied in Mr. Hale's reply, 
" which, we believe, supplies a complete answer to the 
" substance of the charges made by Mr. Grimes. 

" It is proper to add that, at the close of the debate, 
" Mr. Sumner rose to express his confidence in the en- 
" tire good faith with which the Messrs. Smith had dealt 
" with the government. 

" Nearly the whole Massachusetts' delegation in both 
" Houses, we believe, would have joined in this expres- 
" sion ; and one member, himself a merchant of high 
" standing in this city, who knows their course thor- 
" oughly, has said that not only have their transactions 
" been honorable and executed faithfully, but that they 
" have labored diligently to break up that system of 
" awarding contracts which has been the source of so much 
" fraudulent dealing with the government. It is, indeed 
" the fact, we believe, that Mr. Franklin W. Smith has 



35 

** acted as a zealous reformer in this matter, and is now 
" meeting the reformer's customary reward, after having 
" been largely instrumental in overturning the old sys- 
^' tem of fictitious bidding." 

In proof of the vindictive character of this attack, the 
following fact is stated. Having heard that it was in- 
tended, Mr. F. W. Smith, with his brother, and partner 
Mr. Benjamin Gr. Smith, met the Senator from Iowa in 
the Senate ante-chamber and placed with him copies of 
the printed correspondence of F.W. Smith with the Secre- 
tary of the Navy and Chiefs of Bureaus, herein above 
cited, in advocacy of the reform which he finally accom- 
plished, calling the Senator's attention to their date as 
early as February, 1862, and before the completion of 
their first contract. Yet with this correspondence in his 
hands, the Senator insinuated to the contrary, by an in- 
terrogation in his speech : " Did they ever address the 
Department on the subject ? " 

Hon. John P. Hale replied at once in support of the 
Keport of the Naval Committee, and in vindication of 
Mr. Smith. 



Extracts from Speech of Hon. John P. Hale, of New 
Hampshire, in the United States Senate, May 
23, 1864 (as follows) : 

% :ifc ifc if: :ifr 

*'A great portion of the labor of this effort of the Sena- 
tor is made upon Mr. Smith, of the firm of Smith Brothers 
& Co., of Boston. Let me say this of Mr. Smith : I know 
him ; he is a merchant of the highest character ; of un- 
impeachable integrity, and unblemished reputation with 
all who know him. There is not a mercantile house in 
Boston, and that is a place, I think, where the standard 
of mercantile integrity is as high as it is in any city of 



36 

this Union — there is not a mercantile house nor a mer- 
cantile man in Boston whose reputation, excels that of 
Mr. Smith. Mr. Smith is not only a man eminent in the 
walks of mercantile and private life, of unspotted integ- 
rity, and of unsuspected fairness, but, beside all that, 
he is an able man ; he is a keen man as well as an honest 
man ; and do you want to know the secret of this hostility 
to Mr. Smith ?* I have it in my hand here now (holding 
up the pamphlets of Mr. Franklin W. Smith)." 

"When the report of the Secretary of the Navy commu- 
nicated to the two Houses of Congress, on the 7th of De- 
cember last, w^as published, Mr. Smith saw, as every 
man can see that will look at it, evidence of the grossest 
and most outrageous frauds under the published evi- 
dence of the Secretary of the Navy — not one of them 
perpetrated through the agency of the Navy agents. As 
became a man of integrity and of keen intellect, he, in a 
little pamphlet which I hold in my hand, exposed some 
of these frauds perpetrated, not through Navy agents, 
but through officials here at Washington. He exposed 
them in his pamphlet. Let me call your attention to 
one or two of them." 

(The contracts cited and the details of wrong and loss 
exposed can be found in the official report of the debate.) 

* ^ i^ ifc if: 

" Mr. Smith brought these facts to light and published 
them, and for it he is entitled to the thanks of every man 
who desires purity in the administration of the govern- 
ment. Instead of it he has received and secured to him- 
self, and probably to his children after him, the undying 
hatred of the men whose conduct is thus implicated." 

* Quotation of these personal allusions to the defendant -will be 
pardoned in view of the malig-nant disparagement which they 
would counteract. The g-entle proprieties of ordinary life are 
perforce suspended in a mortal conflict for life's chief treasure-r- 
a spotless reputation. 



37 



Mr. Smith's Vindication. 

*'Again, Mr. Smith has not only exposed these wrongs, 
but he has been guilty of another gross offense in the 
view of the heads of these bureaus. When his attention 
was first called to this subject of fictitious bidding, he 
looked back to years ago when it went on quietly year 
after year; and not a word was said against it ; but the 
very first year Mr. Smith's attention was called to it he 
did what the Senator said he ought to have done ; he noti- 
fied the heads of bureaus and the Secretary of the Navy 
of these frauds by correspondence. He had correspond- 
ence, too, with the gentleman appointed to prepare a 
naval code, and made a suggestion of the very frauds 
that had been practiced, and the mode in which they 
might be practiced ; and for that, too, he has committed, 
in the eyes of this gentleman, an unpardonable sin." 

" I have said that Mr. Smith is not only an honest man, 
but he is a keen man. I do not know that I shall be 
doing any injustice to the Senator from Iowa — I certainly 
do not mean to do any — if I say to the Senator from Iowa 
that he is quite as keen a man as he is, and I think he 
is a little keener in one respect. The Senator from 
Iowa — I do not mean to say anything unkind or disre- 
spectful to him — is charged and surcharged with the 
concentrated venom of all the men that Mr. Smith has 
disturbed by writing this pamphlet, and he has been so 
highly charged that he let some of it off before he 
made his speech here, as I think the Senator will see 
when I read, as I propose to read, Mr. Smith's answer 
to the speech of the gentleman, made before the speech 
was delivered. I will read it." 

Mr. Hale here read in full a paper prepared by Mr. 
F. W. Smith in reply to the statements of the Senator 



38 

from Iowa, which is on record in the report of the de- 
bate. It closed as follows : 

" We hope that our efforts in behalf of reform, our 
fearless assertion of our rights as merchants in corres- 
pondence with heads of bureaus, and our exposure of 
collusion and fraud, have not stimulated an eager search 
for wrong on our part which has no existence in fact, 
and thus called down upon us an unfriendly criticism. 
" I remain, sir, respectfully, 

"Your obedient servant, 

" FRANKLIN W. SMITH. 

" Hon. John P. Hale, 

" Chairman of Senate Committee on Naval Affairs ^ 

Mr. Hale continued : 

" Mr. President, I have read tKis long communication 
to the Senate because I thought it due to a gentleman 
whose character was thus assailed, and, I think, as it 
will be published side by side with the statements of 
the Senator from Iowa, that the injurious imputations 
thrown upon the character of Mr. Smith will carry with 
them their own antidote. I believe there is no higher 
duty that a Senator or the Senate owes to the country, 
to the government and to itself, than to vindicate, when- 
ever it is unjustly assailed, the character of any citizen 
whose conduct may be thus brought before the Senate. 
Neither shall I, at any time be deterred from the course 
which I think my diity imposes upon me in defense of 
individual character, or in ferreting out public wrongs 
wherever I may believe that they exist." 

"^ * ^ * :^ 

This preparative attack, for which the material was fur- 
nished by chiefs of bureaus in full possession of published 
evidence of their falsity, was made on the '2'Sd of May, 1864, 
and the military arrest followed on the 17th of June. 



39 



PART FOURTH. 

The Persecution by Prosecution of Franklin W. 
Smith. 

Extracts from ^^ Rules and Regulations for the better Govern-- 
ment of the Navy.'^ 

GriDEON Wells, Secretary. 

Reg. 1210-12. ^^Explanations shall he asked of the party 
at the time of the arrest^ 

Reg. 1203. " The person accused shall he furnished with 
a true copy of the charges, with the specifications at the time 
he is put under arrest." 

Reg. 1205. " Offence shall not he allowed to accumulate 
in order that collectively sufficient material may thus he found 
for a prosecution." 

Reg. 1212 provides that " hefore a decision is made hy 
the Secretary whether a trial shall take place, explanations 
of the party accused shall invariahly accompany the state- 
ment of facts." 

A few weeks after the warning of Senator Hale, mer- 
chants of Boston, of whom Smith Brothers had pur- 
chased merchandise for the N^vy, informed them that 
they had been summoned before a detective inquisition 
in Court Square ; the whole animus of which was 
against Franklin W. Smith, and to prove dishonesty 
of the firm, in short deliveries of goods sold to the 
department. The detectives assumed that what was 
known to exist as a practice elsewhere, through collusion 
of officials, would be also found in Boston. 

The books of these merchants tallied to an iota with 
the invoices to government, and such tracks against 
Smith Brothers were followed in vain. 



40 

But at these inimical and despotic appliances F. W. 
Smith was alarmed. He wrote to Messrs. A. H. Rice 
and D. "W. Gooch, Representatives from Massachusetts,. 
and to Senator Wilson, in terms as follows 

Boston, April 6, 1864. 
Hon. A. H. Rice : 

Dear Sir — While I was in Washington a Col. Olcott 
left for Boston for investigation of frauds in the Navy 
Department. Meanwhile he has held a private court 
daily, summoning witnesses before him. 

:^ i^ ^ ^ ;f: 

I beg you, in behalf of a character dearer to me than 
life, once again to ask of the Hon. Secretary that no 
step shall be taken to our injury, until I have seen the- 
statements that may be gathered against us, and had 
opportunity to demonstrate their utter, total falsity. Is 
this more than the justice I should expect from the gov- 
ernment ? 

* ifc * :fc :fc 

To Hon. D. W. Gooch : 

Dear Sir — I learn this P. M. that Col. Olcott has 
left for Washington with his gatherings of scandal, 
especially against ourselves. I beg you to inform the 
delegation of this wrong. ^ * 

"Answer I can, triumphantly, if I have opportu- 
nity, if: ifc 

" But it is useless to answer in the dark. Is it possi- 
ble that with the record I have made to date, my char- 
acter is to be permitted to be outraged to gratify the 
malevolence of those in power ? If so, pity for a free 
country !" 



41 

" To Hon. Henry Wilson, U. S. Senate, Washington : 

^ * Hi H: H: 

" Dear Sir — Smith Brothers invite the utmost scru- 
tiny, fairly conducted. 

" Yet they have incurred the dislike of certain bu- 
reaus. The reasons will be found in the accompanying 
pamphlets. ^ ^ My present purpose is to 

elicit a perusal of the enclosed papers, that you may 
read our record, and to bespeak your decided effort 
against any such injustice as the use of ex-parte, secret 
evidence gathered against us before we have had any 
opportunity for a hearing." 

To the remonstrances of these gentlemen Secretary 
Wells gave assurance of due fairness. But the inquisi- 
tion continued. After the Secretary was informed that 
Mr. Smith had not been summoned, which he had 
claimed as a right ; a notice was sent to him to appear. 
Thirty minutes onlyAvere allowed him in answer to gen- 
eral inquiries, when he w^as dismissed. Merchants, 
friends of Messrs. Smith, who testified to their integrity, 
were, like himself, never asked to complete or sign their 
testimony ; while threats and false entries were employed 
with workmen in the Navy Yard, and others, to work up 
affidavits against them.* 

The raid upon Smith Brothers continued ; and in in- 
creased alarm, F.W. Smith went to Washington. In com- 
pany with Hon. A. H. Rice, he received assurance from 
Secretary Wells, " that no measures should he taken against 
the firm until opportunity had been given for explanation'' 

Upon this pledge of the honor of the Secretary, Mr. 
Smith rested in confidence until its ruthless and abso- 
lute violation. 

* See arg-ument of Judge Thomas in defence, with quotations 
of the sworn evidence of these witnesses before the Military Court ; 
a,lso Addenda IV. 



42 

On the 17th of June, 1864 (anniversary of the battle 
of Bunker Hill, when the business centers were de- 
serted) ; three months after the coming of the inquisition 
to Boston, Smith Brothers were arrested upon a military- 
order from General Dix at New York, upon the demand 
of Gideon Welles, and were sent to Fort Warren. 

Then a detachment of marines took possession of their 
warehouse. Their safe was forced, and all books and 
papers seized. Soldiers invaded the home of Franklin 
W. Smith, broke locks, and purloined all papers, even 
correspondence of deceased relatives. 

These proceedings aroused indignation in Boston and 
Washington. 

From the Boston Journal. 

[Special Dispatch ] 

" There is intense feeling in Washington among Mas- 
sachusetts men respecting the arrest of Smith Brothers, 
of Boston. , The Congressional State delegation had a 
meeting on the subject. They waited upon Secretary 
Welles ; but got few promises — none, in lact. 

" We understand that the Massachusetts delegation 
offered to be personally responsible for the appearance 
of Messrs. Smith." 

Editorial from the Boston Post, June 18th. 

" For some time past a Select Committee, appointed 
by authorities at Washington, have been investigating 
matters connected with navy contracts at this port, and 
as a result of their investigations, two members of the 
firm of Smith Brothers, dealers in hardware, at No. 102 
Federal street, were arrested yesterday by military 
authorities, their store taken possession of, and they sent 
to Fort Warren. 



43 

" Mr. Franklin W. Smith, the senior member of the 
firm, has been in business in this city for many years, 
and no firm stands higher than his, in the confidence of 
the community. The transactions of Mr. Smith with the 
government commenced some three years ago, since 
which time his firm has been almost exclusively engaged 
in furnishing Naval Supplies under contracts. We are 
informed that the prices paid for supplies which they 
have furnished, as appears by official reports, have been 
more favorable to the government than those paid at 
any other yard. There would seem to be no chance, 
therefore, for any swindle." 

" Some two years ago, Mr. Franklin "W. Smith, the 
senior member of the firm, in a series of letters to the 
Navy Department, exposed the manner in which the 
government had been grossly swindled under Navy con- 
tracts, and recommended a change in the system of 
making these contracts. The reform was made by Con- 
gress, upon his suggestion. By his fearless exposure of 
these abuses, he gained the enmity of swindling con- 
tractors and of parties in the Bureau of the Navy De- 
partment, whose collusion with these contractors was 
more than suspected. The impression among the friends 
of Mr. Smith who know these facts is, that the proceed- 
ings against him are 'purely malicious r 

To paralyze public sympathy by indications of serious 
allegations against the Smiths when no charges what- 
ever had been presented, as required by law ; bail to 
the amount of $500,000 was demanded. Immediately 
it was telegraphed that $1,000,000 would be offered; 
and within twenty-four hours that amount was tendered 
by indignant citizens of Boston. When it was seen 
that the ruse to carry public condemnation by storm 



44 

had miscarried and recoiled, it was wired from the 
Navy Department that a bond of $20,000 would suffice. 
Upon this. Smith Brothers returned at once to Boston, 
after most courteous and hospitable treatment in the 
fort by Col. Dimock, the commandant. He said that 
he had no precedent for detention of merchants in a 
fortress, and therefore installed them in quarters adjoin- 
ing his own; shared with them his table, and gave 
them the range of the fortification and island. 

But while they were quickly released through the en- 
ergy of Massachusetts Congressmen and their fellow- 
citizens, their books and papers were sent to Philadel- 
phia, where, as was proved, charges were manufactured 
therefrom to make grounds for an arrest which had 
been made without shadow of reason, and in utter viola- 
tion of the *' Rules and Regulations" provided for mili- 
tary arrests, above quoted. 

It was not until the 11th of August, 1864, two months 
later, that '' charges and specifications" were addressed 
to F. W. Smith at the department. 

These charges did not involve a loss of above $500 
in the aggregate on four different specifications. Sub- 
sequently another allegation of $2,000 damage upon 
a sale of pig iron (on which the government made a sav- 
ing of $30,000 in value before delivery) was added ; but 
this count was at once abandoned by the court. 

In the Report of the committee of the Boston Board 
of Trade in review of the case occurs the following sum- 
mary of these charges : 

" In a word, your committee do not hesitate to express 
the opinion that an importer of the different kinds of tin, 
a dealer in foreign and domestic iron, and an importer of 
hardware, acting as refeo-ees, for a trifling fee, would have 
heard the case in ten or twelve hours, and haw made an 



45 

award satisfactory to the most respectable commercial houses 
in the United States and in Europe. 

" The transactions of Smith Brothers & Co. with the 
Navy Department amounted to about a million and a 
quarter of dollars ; and so numerous were the articles 
delivered that the entries of sales cover twelve hundred 
and five pages. We give a single instance of details. 
In a contract for the precise sum of $19,902.13, a witness 
for the prosecution estimated thus : 



251 articles upon different lines. 

12,564 single articles. 

171 barrels. 

53,509 pounds of articles asst'd. 

12,000 tallies. 

25d gross assorted. 



80,000 tacks and brads. 
6 sets of carpenters' tools. 
600 feet of chain. 
52 reams of paper. 
10 boxes of tin. 
64 iron girders. 



" Of these, alleged to be of inferior quality at the trial, 
were, 1 mason's hammer, 1 ratchet drill, 1 pair dividers, 
1 spirit level, 2 pickaxes, 1 drawing knife, 1 drill stock, 
1 dozen chisels, 1 sheet sand paper, 1 sickle, 1 hoe, 2 
shovels, 1 axe, 1 handsaw, 1 hammer, 5 manure forks, 1 
spade, 6 scythes, and 6 rakes. 

"In view of such facts, the charge of 'fraud,' or of 
fraudulent intention, is utterly frivolous. The wonder, 
indeed, is that, in so large a business, and in the condi- 
tion of the market since the beginning of the w^ar, the 
number of articles below the standard quality should be 
so very limited. Of the general good quality of the 
goods and wares sold and delivered, there can be no 
doubt. No less than ninety merchants and manufacturers, 
who sold goods to Smith Brothers & Co. to the amount nearly 
of one million of dollars, declare, in a paper which was trans- 
mitted to the late deeply lamented President of the United 
States, that having furnished that firm ^with merchandise at 
various times within the past three years, destined for the use 



46 

of the United States Navy Department, we hereby certify 
that we have in all cases sold and delivered to them such qual- 
ities as we believed would be entirely satisfactory to and fitted 
for the use of the Department, and such as we should have 
supplied had the order been made upon us directly by the 
Gfovernment.'' 

" Frauds, cheatings, should show great gains. But 
your committee are satisfied, that this large, compli- 
cated and vexatious business was transacted for a very- 
moderate compensation. In the course of the trial, ' Mr. 
B. G. Smith testified that, upon as an exact approxima- 
tion as he had been able to make, the net profits left to 
Smith Brothers & Co., on the first of February, 1864, 
were about five per cent upon the amount of sales.' 

" Few merchants of reputation, as we venture to sug- 
gest, will be anxious hereafter to become ' contractors,' 
for twice or thrice five per cent profit, when, besides the 
notorious delays in payment, fines and Bastiles are in 
the prospective, for alleged default in the quality of a 
saw or of a hammer ; or because, owing to the operation 
of the tariff on importations from Europe of articles pro- 
duced east of the Cape of Good Hope, there is a differ- 
ence of two cents the pound in tins of about the same 
purity, and of the same intrinsic value ; ay, because 
Banca, not Revely, is ' nominated in the bond." ' 

Accompanying the charges and specifications was an 
order to appear before a court-martial at Philadelphia. 
Then a delegation went to President Lincoln in remon- 
trance. 

This delegation comprised Senator Wilson of Massa- 
chusetts, Judge Thomas, and the late Hon. Wm. B. 
Spooner, one of the most eminent and philanthropic cit- 
izens of Boston. When Senator Wilson opened the case 



47 

President Lincoln replied : " I know all about it, Wilson; 
it is a fight between a department and a citizen, and 
the citizen has no fair show. I propose to quash the 
whole thing." "No," said the Senator, "we hope you 
will do no such thing. Smith Brothers wish ifc never to 
be said that this charge was fixed up through influence. 
They challenge the tight, but want protection against 
conspiracy and a court chosen by their enemies." 

" You are right," said the President, " go tell the 
Smiths I'd has leave be tried by the devil on a court- 
martial, as anybody else, if it can be looked up after- 
wards. Let them run their machine, and I will take it 
up when they are done." 

Despite the countermand, a second order was issued 
for the defendants to go to the court in Philadelphia. 
The delegation returned to the President, who sent for 
Secretary Welles and asked the reason. " We have no 
money," said he, " to pay expenses of sending the court 
to Boston." " I guess you can find some," said the Presi- 
dent. " Order the court to Boston.'" The trial subse- 
quently cost Smith Brothers twenty thousand dollars, 
and much more to the government. 

At length, in September, 1864, the Naval Court con- 
vened in the Navy Yard at Boston. It was composed 
of seven naval officers, retired for old age or incompe- 
tency on "half pay"; some of whom were noted on 
the Naval Register as "not recommended for promo- 
tion." These absolute judges of both law and fact 
were chosen by the accusers ; one of whom had been 
heard to say, "TTe constitute courts to convict.'"^ So long 
as their decisions suited the appointing power these 
superannuated officers received " full pay." If not satis- 
factory, they could be " relieved." 

* This was the origin of a now common quotation. 



48 

Each page of testimony recorded in mammoth pen- 
manship paid the Judge Advocate a fee. It was piled 
up to an aggregate of 2,500 pages. Two judges advo- 
cate appeared before the close of the case. Four months 
were spent before the conclusion of the case by the 
court. On the 26th January, 1865, the President or- 
dered the record to be sent to him for examination after 
revision by counsel for the department, by whom all 
charges had been abandoned but that of $100, for a 
difference between Banca and Revely tin. 

On the evening of March 13th the President said to 
Mr. Sumner: " I have read every word of the opinion 
of Eames ; but by his own showing, only one case was 
in any way made out — that of the Banca tin. I wish, 
Sumner, you would take Eames' opinion and let me 
know what you think of it." 

The sequel of the case is appended from Mr. Sum- 
ner's pen. 



49 



PART FIFTH. 

Extracts from the Opinion op Hon. Charles Sumner 

GIVEN at request OF PRESIDENT LiNCOLON FOR HIS 
REVIEW OP THE CASE. 

This paper with explanatory notes^ was prepared by 
Mr. Sumner for the ninth volumes of his " Works," the 
month before his death. He preceded it by the "Appeal 
of the Massachusetts Delegation in Congress to the 
President of the United States," written by himself. 
Vide Addenda No. I. 

:jc % * * * 

"The more I have examined this case, the more I have 
been surprised by the preliminary proceedings, the con- 
tinued prosecution, and the findings of the court. I can 
well understand how they were used in the House of 
Representatives as an argument for the total repeal of 
the Act of Congress authorizing the trial of civilians by 
courts-martial. Such a case must make us fear, that, 
under this Act, justice may be sacrificed. It might 
make honest merchants hesitate to enter into business 
relations with the Government." 

"On careful examination, it seems that the whole prose- 
cution, so far as proof is seriously pretended, is reduced 
to one single specification, — to wit, the sale and delivery 
of five thousand pounds of a tin called Revely, instead 
of a tin called Banca, by which, at most, the Government 
lost one hundred dollars." 

% :^ :f: * * 

* Senator Sumner, presented to Mr. F. W. Smith all his manu- 
scripts upon the case. They are valuable autog-raj)hic souvenirs 
of that indefatig-able consecration to justice, which was the noble 
characteristic of his life. 



50 

*'Look at this carefully, and the wonder increases that 
these proceedings were ever instituted." 

"1. The first remark to make is, that, even according 
to the finding of the Court, the Government has suffered 
only to the amount of one hundred dollars, — being the 
difference in price between the two kinds of tin at the 
date of delivery. The pettiness of this loss is still more 
apparent, when it is considered that the transactions of 
the respondents with the Government reached the sum 
of more than twelve hundred thousand dollars, having 
such infinite details that they covered twelve hundred 
and five pages of sales. Surely, on every principle of 
reason or evidence, the insignificance of this loss, in 
transactions on so large a scale, and extending over three 
years of time, constitutes an unanswerable presumption 
in favor of the respondents, excluding, as it does, any 
adequate motive for the perpetration of fraud. * * 
If a mountain in labor ever brought forth a mouse, it is this 
mountainous prosecution, whose only offspring yet crawling 
on earth is an allegation of loss to the United States of one 
hundred dollars ! But, if we look further at this transac- 
tion, it will he seen that it is absolutely unimpeachable.^ 

" It appears that, according to extensive and long con- 
tinued usage, Revely is included under Banca ; that, 
according to usage at the Navy Yard, it was treated as 
Banca; that the whole transaction and the delivery 
were open and without any concealment ; that Revely 
was actually accepted by the officers of the government 
in performance of the contract; that the respondents 
never expected to supply other than Revely ; and lastly, 
that the prices paid shows that Revely was intended. 
Surely this is enough. I forbear to go into the evidence 
of founders and plumbers, derived from experience ; of 
assayers and chemists, derived from analysis of the two 



51 

tins in question ; and also of business men as to their 
comparative value, for all this is superfluous. To charge 
fraud against the respondents under such circumstances is 
cruel, irrational, preposterous. Their conduct cannot he 
tortured or twisted into fraud. As well undertake to extract 
sunbeams out of cucumbers, or oil out of Massachusetts 
granite. 

" It is difficult to imagine the origin of these unfor- 
tunate proceedings, which, beginning in unexampled 
harshness, threaten to end in unexampled injustice, un- 
less arrested by the President. But there are certain 
facts which may shed light upon some of the hidden 
springs." 

:^ % if: :fj :fc 

"It appears that Franklin W. Smith, one of the re- 
spondents, published a pamphlet, in which he exposed 
abuses in the contract system in the Navy Department, 
and it is understood that sundry officials felt aggrieved 
by these disclosures. The spirit of these officials appears 
sufficiently in the following extract from a letter of one 
of the witnesses of the government, holding an impor- 
tant position in the Navy Department, addressed to an- 
other witness, himself an official also : 

" I HAVE BEEN SUMMONED BEFORE THE SeLECT COMMIT- 
TEE OF THE Senate for investigating frauds in naval 
SUPPLIES, AND IF THE WOOL DON'T FLY IT WON'T 
BE MY FAULT. Norton, the Navy Agent, has com- 
plained that I have interfered with his business ; 

HE AND HIS FRIEND SmITH ARE DEAD COCKS IN THE 

PIT. WE HAVE GOT A SURE THING ON THEM 
IN THE TIN BUSINESS. They that dance must 

PAY THE FIDDLER." 

" The writer of this letter, after appearing before the 



52 

Senate Committee at a later day, came on from Wash- 
ington to appear before the court-martial at Charles- 
town as a witness against the respondent, where he 
underwent a cross-examination on which I forbear to 
comment, if the prosecution did not originate in the 
spirit which fills his letter, it is evident that this spirit 
entered into it. ' IF THE WOOL DON'T FLY IT WON'T 
BE MY FAULT.' 'DEAD COCKS IN THE PIT.' *A SURE 
THING IN THE TIN BUSINESS.' Such are the counter- 
signs adopted by the agent of this dark proceeding, 
showing clearly two things : first, the foregone conclu- 
sion that these respondents were to be sacrificed ; and 
secondly, that the case turned on the * tin business.' 

" It is hard that citizens enjoying a good name, who 
had the misfortune to come into business relations with 
the government should be exposed to such a spirit; 

ii: Hi Hi Hi Hi 

that they should be obliged to undergo a protracted 
trial by court-martial, damaging their good name, de- 
stroying their peace, breaking up their business and 
subjecting them to untold expense, when at the slightest 
touch the whole case vanishes into thin air, leaving behind 
nothing but the incomprehensible spirit in which it had its 
origin. 

" Of course the finding and sentence of the. court 
ought, without delay, to be set aside. But this is only 
the beginning of justice. Some positive reparation 
should be made to citizens who have been so deeply 
injured. 

CHARLES SUMNER. 

Washington, March 16, 1865. 
To the President of the United States. 



53 
Interesting incidents of President Lincoln's Action 

APPENDED to THE OPINION BY Mr. 8uMNER FOR HIS 

Works. 

" The President promptly overruled the judgment and 
sentence. The result was received with manifestations 
of joy. The defendants, whose cruel prosecution had 
been protracted for six months, had an ovation in the 
congratulation of their friends and fellow-citizens.^ 
Strangers at a distance, feeling that public liberty had 
suffered through them, sent their sympathy. The press 
gave expression to the prevailing sentiment. Nor was 
Mr. Sumner forgotten. The defendants made haste by 
telegraph to say : "Accept the lasting gratitude of Smith 
Brothers, their families, and their many friends." Others 
wrote in the same spirit — as, for instance, J. C. Hoadley, 
of New Bedford, who, though not knowing the sufferers, 
said: " I thank you, in the name of all fair dealing, for 
your opinion upon the case of Franklin W. Smith." From 
these expressions it appears that the effort of Mr. Sum- 
ner was regarded as not only a defence of the individual 
citizen, but a contribution to good government." 

" Independent of its character, this case has an inci- 
dental interest. It was one of the last, if not the last, 
having a personal relation, that ever occupied the mind 
of President Lincoln. His indorsement, overruling the 
judgment and sentence, bears date March 18th. This 
was Saturday. Meanwhile the Rebellion was about to 
fall, and the President left Washington, by boat, Thurs- 
day, March 23d, for City Point, the headquarters of the 
Army of Virginia, where he remained till after the sur- 
render of Richmond, returning to Washington Sunday 
evening, April 9th, and being assassinated Friday even- 
ing, April 14th." 

*V. Addenda VIII. 



54 

" Some circumstances associated with this case help 
exhibit the character of the President. They will be 
stated briefly. As soon as Mr. Sumner had prepared 
his Opinion, he hurried to the President. It was late in 
the afternoon, and the latter was about entering his car- 
riage for a drive, when Mr. Sumner arrived with the 
papers in his hand. He at once mentioned the result he 
had reached, and added that it was a case for instant 
action. The President proposed that he should return 
the next day, when he would consider it with him. Mr. 
Sumner rejoined, that, in his o'pinion, the President 
ought not to sleep on the case — that he should interfere 
promptly for the relief of innocent fellow-citizens — and 
urged that, if Abraham Lincoln had suffered unjust im- 
prisonment, an immense bill of expense, a trial by court- 
martial, and an unjust condemnation, he would cry out 
against any postponement of justice for a single day. 
The President, apparently impressed by Mr. Sumner's 
earnestness and his personal appeal, appointed eleven 
o'clock that evening, when he would go over the case, 
and hear Mr. Sumner's Opinion." 

" Accordingly, at eleven o'clock that evening, in the 
midst of a thunder-storm, filling the streets with- water, 
and threatening chimneys, Mr. Sumner made his way 
to the Presidential mansion. At the very hour named 
he was received, and at the request of the President pro- 
ceeded to read his Opinion. The latter listened atten» 
tively, with occasional comments, and at the close showed 
his sympathy with the respondents. It was now twenty 
minutes after midnight, when the President said that he 
would write his conclusion at once, and that Mr. Sumner 
must come and hear it the next morning — "when I open 
shop," said he. "And when do you open shop ? " Mr. 
Sumner inquired. "At nine o'clock," was the reply. At 



55 

that hour Mr. Sumner was in the office he had left after 
midnight, when the President came running in, and read 
at once the indorsement in his own handwriting, as 
follows : 

THE VINDICATION BY PRESIDENT LINCOLN. 

" I AM UNWILLING FOR THE SENTENCE TO STAND AND BE 
EXECUTED, TO ANY EXTENT, IN THIS CASE. In THE AB- 
SENCE OF A MORE ADEQUATE MOTIVE THAN THE EVIDENCE 
DISCLOSES, I AM WHOLLY UNABLE TO BELIEVE IN THE 
EXISTENCE OF CRIMINAL OR FRAUDULENT INTENT ON THE 
PART OF ONE OF SUCH W^ELL-ESTABLISHED GOOD CHARACTER. 
AS IS THE ACCUSED. If THE EVIDENCE WENT AS FAR 
TOWARD ESTABLISHING A GUILTY PROFIT OF ONE OR TWQ 
HUNDRED THOUSAND DOLLARS, AS IT DOES OF ONE OR TWO 
HUNDRED DOLLARS, THE CASE WOULD, ON THE QUESTION OF 
GUILT, BEAR A FAR DIFFERENT ASPECT. ThAT ON THIS- 
CONTRACT, INVOLVING FROM ONE MILLION TO TWELVE HUN- 
DRED THOUSAND DOLLARS, THE CONTRACTORS SHOULD AT- 
TEMPT A FRAUD WHICH AT THE MOST COULD PROFIT THEM 
ONLY ONE OR TWO HUNDRED, OR EVEN ONE THOUSAND 
DOLLARS, IS TO MY MIND BEYOND THE POWER OF RATIONAL 

BELIEF. That they did not, in such a case, strike 

FOR GREATER GAINS PROVES THAT THEY DID NOT, WITH 
guilty OR FRAUDULENT INTENT, STRIKE AT ALL. ThE 
JUDGMENT AND SENTENCE ARE DISAPPROVED AND DE- 
CLARED NULL, AND THE ACCUSED ORDERED TO BE DIS- 
CHARGED. 

"A. LINCOLN. 

''March 18, ISm." 



Reduced Photograph of the Endorsement of 
President Lincoln. 



EXTRACTS FROM PUBLIC DOCUMENTS AND THE 
PRESS, 1864-1865. 



From the Speech op Hon. John P. Hale in the 
United States Senate, February, 1865. 

" There was a committee appointed by the Senate at the 
last session to investigate matters connected with naval 
supplies. The committee attended to that duty very 
laboriously ; and they laid some results before the Sen- 
ate and before the country which, I think, were most 
conclusive as to the existence of gross fraud. Well, sir, 
do you know what the result of that was ? One of the 
material witnesses in that case — one of the most respect- 
able men of Boston, who testified, and testified very 
fully, before that committee — pretty soon after he went 
home, was seized, his store seized, his papers seized,, 
his wife's papers seized ; and he was sent to a military 
fort, and ordered not to be released under a bail of 
$500,000, and was ordered to Philadelphia for trial. 
That was a little too strong even for the city of Boston, 
considering that, to render the thing more notorious, the 
arrest was made on the 17th of June." 

% % T» ^ ^ 



57 

In reply to the question of Senator Davis, who asked, 
*' if the offence for which that gentleman was seized and 
imprisoned was merely that of giving in his testimony 
and his exposure of those frauds," Mr. Hale declared." 

"That is my opinion; but it was not the assigned 
cause. They ordered him, as I have said, to be con- 
fined in Fort Warren, and not to be released under 
$500,000 bail ; and he was ordered to Philadelphia for 
trial. This was a little too much for the loyal city of 
Boston ; and it created such indignation there that a 
delegation of citizens of Massachusetts — I think the 
honorable Senator on my left (Mr. Sumner) was one of 
them — represented this thing to the President; and 
the President countermanded the order for carrying a 
citizen of Massachusetts from Boston to Philadelphia 
for trial." 

H: H: H: ^ H: 

Speaking of courts-martial, Mr. Hale said, in the 

Senate : " And in that connection, I have a remarkable 
statement to make in regard to these tribunals. The 
man who ordered this outrageous arrest — the man who 
perpetrated this outrage in Boston — compared to which 
the proceedings of Turkey are civilized, and the Inqui- 
sition is a tender mercy — being remonstrated with, on 
another occasion, against sending these cases to naval 
and military courts-martial, and being asked why he 
did not take the ordinary courts, made this remarkable 
avowal: ^^ Tour civil courts are organized to acquit; we 
organize courts to convict!'' If there Avas some friend 
of the individual referred to here to deny it, without 
stirring out of my tracks, I would prove, by evidence 
that would flash conviction on every mind that heard it, 
that it is true as Holy Writ that this declaration was 
made, and not only made, but acted upon." 



58 



Speech of Hon. H. L. Dawes, March 2, 1865. 

" I understand from high authority in the Navy De- 
partment, that courts-martial are not organized, like 
courts of law, to guard the rights of the accused and 
secure justice, but are organized to convict." 

^ ^: ii: ^ ^ 

Still again, and referring to this very case : "I have 
in the last fortnight had the painful duty devolved upon 
me to read the proceedings of a court-martial under the 
law which I reported to the House some two years ago. 
It is one which, I venture to say, has hardly a parallel 
for the bitter malignity which seems to run through the 
whole proceedings, and for wider departure from old 
and established rules of law, of which the accused were 
the victims, and by which they were hunted, since the 
days of Jeffreys. It is the case of Smith Brothers of 
Boston. If every charge alleged before the court-mar- 
tial were taken to be true, just as alleged, they would 
only have been in default, in transactions covering a 
business of more than twelve hundred thousand dollars, 
and the furnishing of thousands of different articles, 
barely twenty-two hundred dollars, and without any- 
thing which deserves the name of evidence that this 
paltry default was intentional." 



59 



Editorial from the Boston Journal, February 14, 1865. 

" The case of the Smith Brothers, which has been on 
trial before a court-martial for several months past, is 
one which will now demand the attention and examina- 
tion of the public, and probably of the President and 
Congress. We doubt whether in the course of the war, 
individuals — citizens whose loyalty is unimpeached — 
have been more harshly dealt with, or more persistently 
and cruelly persecuted. All the constitutional and legal 
safe-guards which, under our Republican government, 
have been thrown around individual liberty, have in 
their case been broken down, and under no despotic 
government have those who have fallen under the ban 
of the ruling powers been more summarily dealt with, 
or held in a grasp of more relentless severity." 

:^ ifc ^ % :fr 

"The public will naturally inquire how and in what 
quarter this persecution originated? Two years ago 
Franklin W. Smith exposed and broke up an existing 
contract system which opened a wide door for frauds. 
In his illustrations of the working of the system it was 
shown that some of those employed in the bureaus of 
the Navy Department must have been in collusion with 
swindling contractors. From that time the persecution 
commenced. Investigation, which this case vdll cer- 
tainly receive, will develop its source and extent. 



60 



Editorial from Boston Daily Advertiser, March 21, 

1865. 
" The result of the great case of the Smith Brothers, 
naval contractors, charged with fraud, is at last before 
the public. After preliminary proceedings, which had 
seemed to point to disclosures of astounding magnitude, 
and after a thorough investigation of the business of 
the defendants, whose books and private papers were 
searched by experts for the materials for a prosecution, 
the charges brought against them finally settled down 
to an amount not much exceeding $2,000, while the 
charges relied upon against them scarcely reached the 
sum of $500." ^ Hi ^i The President has reviewed 
the case and has annulled the judgment, thus setting 
his condemnation not only upon this extraordinary sen- 
tence, but upon the judgment itself, by which, after their 
case had so shrunk from its original supposed dimen- 
sions, the accused were convicted at all. The upshot of 
the matter is, that after all the immense parade and 
excitement with which this case began, it turns out that 
there is nothing in it. The accused stand to-day not only 
free from all charges, but with evidence that after a 
searching examination of their course of business, no 
sound basis for charges could be found. They had, at 
the beginning, the confidence of the mercantile com- 
munity in which their lives have been passed ; they now 
have its indignant sympathy also." 

tC ^fC ^C tC tC 

" The arrest of the Smith Brothers was made in June, 
1864. It was marked by every circumstance that could 
suggest the blackest criminality on their part. Had 
they been guilty of treason, the proceeding would have 
been deemed severe ; it would have been thought un- 
reasonable and even outrageous, had the charge been 



61 

murder." * * "And all this, as now only too certainly 
appears, was done upon a venture. Those instigating 
and responsible for the ]3roceedings, may have thought 
it likely that something of importance might thus be dis- 
covered, but they plainly had nothing of consequence to 
base their action upon. Every constitutional safeguard 
of personal rights — freedom from unreasonable searches 
and seizures and from excessive bail — was disregarded, 
not from any necessity, but to see what might come of 
it, and what disclosures might result from a blow thus 
struck at random. The whole unlimited authority with 
which the people have temxDorarily intrusted their gov- 
ernment to meet the terrible exigencies of civil war was 
put forth, and all, not only without necessity, but as it 
appears upon grounds which would not justify detention 
over night. 

" Upon these proceedings followed a tedious and costly 
trial, the amount involved in which would not pay for 
the printing necessarily done by the accused ; ten times 
the amount would not reimburse either government or 
accused for their expenses. And now upon a review of 
the case by a senator, whose pains-taking and love of 
justice displayed in this case do him the highest honor, 
and by the President, who will see the rebellion crashed 
but not innocent citizens, the case has been upset, and 
the accused have escaped from the tremendous blow, 
which was aimed at them. With less individual tenacity 
of purpose, less ample means at command and fewer 
friends, they could not have escaped, the whole power 
and authority of the United States being used against 
them — and what would then have been the record ? Two 
citizens destroyed, in fame and property, and — as the 
President has now decided — without just cause ! 

"We will not seek to probe the motives of these pro- 



62 

ceedings. Their history runs back, we suspect, for a 
considerable distance among controversies as to Bureau 
management — respecting which we had occasion to give 
an opinion favorable to the Messrs. Smith in June of last 
year, shortly before their arrest, when they were already 
laboring under accusations, which, upon examination we 
pronounced to be unfounded. All this history, there is 
reason to believe, will engage the attention of Congress 
and will be thoroughly explored." * ^ " Unhappily 
we cannot wipe out the shameful record of a transaction 
like this, in which, at last, the government is found to 
become the chief offender from whom reparation is due. 
But the President can, and if he heeds the unanimous 
voice of public opinion he will see to it that his subordi- 
nates are made to understand that their powers are not 
to be used wantonly, and that the civil rights and repu- 
tations of citizens are not to be struck down heedlessly 
and upon mere suspicion." 



Editorial prom the Boston Journal, March 22, 1865. 

Senator Sumner's Review of the Case of the 
Smith Brothers. 

We publish in the Supplement of this morning the 
able review, by Senator Sumner, of the case of Franklin 
W. Smith, which should be read by all who are interested 
in this extraordinary case. It will be seen by this paper 
that the case, when it left the Navy Department and 
was submitted to the President, had little left but the 
tin charge. The Court swept away some of the charges, 
and the Solicitor of the Navy Department, Mr. Eames, 
conceded that there was little or no basis for the others, 
except the tin charge. On that the prosecution fell back, 
and intrenched itself. 



63 

This tin charge — this enormous crime for which two 
honorable merchants were summarily arrested, without 
any of the forms of civil law, their business broken up 
and a large portion of their property swept away— 
involves the petty sum of |100 ! But even this charge 
is completely riddled by Mr. Sumner in his review, as 
it was effectually answered on the trial even by the 
testimony for the Government, a part of which Mr. 
Sumner quotes. As Mr. Sumner pointedly remarks, " at 
the slightest touch the whole case vanishes into thin air, 
leaving nothing behind but the incomprehensible spirit 
in which it had its origin." 



Editorial, New York Commercial Advertiser. 

" Franklin W. Smith & Brother, a well-known Boston 
firm, became some years since, contractors for the supply 
of numerous classes of articles at the Charlestown Navy 
Yard, and had delivered merchandise to the amount of 
upwards of one million two hundred and fifty thousand 
dollars, when Col. Olcott stopped all transactions in the 
most summary manner. A detective inquisition was 
established that called before it more than one hundred 
parties to be probed and catechised." ^ * " And 
yet, after this large amount of business had been in- 
spected, analyzed and dissected with hostile intent as 
never before was a like business scrutinized, the only 
frauds which could be in any way proved, did not 
amount to two thousand dollars, less than one-sixteenth 
of one per cent, upon the amount of the business." 
^ * * i^ ^ 

" President Lincoln has set aside the findings and 
sentence of the Court, and it is to be hoped that Con- 



64 

gress, at its next session, will make a more positive 
reparation to Mr. Franklin W. Smith." 

H: Hi H: Hi Hi 

"Fortunately for Mr. Smith, he has had influential 
friends who have stood by him manfully. Messrs. Sum 
ner, Gooch, Hooper, and other members of the Massa- 
chusetts delegation in Congress ; Mr. Dix, the editor of 
the Boston Journal; Messrs. Benjamin F. Thomas, C. R. 
Train and Gfeorge P. Sanger, the able counsel for the 
defence, with scores of the " solid men of Boston," have 
stood between Mr. Smith and his persecutors, and they 
have seen him safely through." 



Extracts from the Exhaustive and Unanimous Re- 
port OF THE Special Committee of the Boston 
Board of Trade, May 16, 1865. 

In order to "judge" of the guilt or innocence of 
Franklin W. Smith as a "Boston merchant," and to re- 
commend his retention or expulsion as a member of the 
Government of this Board, your Committee deemed the 
reading, the thorough reading, of the record of the pro- 
ceedings of the Court-martial, unconditionally indispens- 
able. And these nineteen hundred and thirteen pages 
have been perused with care, indeed more ; for we have 
in our possession upwards of eight hundred printed 
pages, which relate more or less directly to this remark- 
able trial, which have not only been read, but the 
material facts or statements studied and mused upon, 
with single reference to forming a righteous "judgment" 
in the premises. Mention of the titles of this mass of 
printed matter is necessary to show how thorough and 
searching has been the investigation. 



65 

Thus, then, notes of every thing deemed important 

have been made from the following, namely : — 

Oorrespondence with E. L. Norton, Navy Agent, Boston. 

Analysis of certain contracts with the Bureau of Con- 
struction, and with the Bureau of Steam Engineering. 

Bids, rejected for fictitious prices. 

Correspondence with the Secretary of the Navy, and 
with the Commissioner of Naval Code. 

Decisions upon the acceptance or rejection of bids. 

Rejoinder to the explanations of Naval Bureaus con- 
cerning the awards of certain bids. 

Correspondence with the Bureau of Steam Engineering. 

Opinions of the Press in the case. 

Reply of Smith Brothers & Co. to the Hon. Mr. Grimes, 
Senator in Congress from Iowa. 

Correspondence with the Hon. John P. Hale, Chairman 
of the Senate Committee on Naval Supplies. 

Letters of Smith Brothers & Co. to several Members of 
Congress. 

Memorial of the Senators and of the Representatives in 
Congress from Massachusetts, to the President of the 
United States. 

Testimony of ninety merchants and manufacturers as 
to the quality of merchandise purchased by Smith 
Brothers & Co. for the Government. 

Correspondence with the Chief of the Bureau of Ord- 
nance, with the Chief of the Bureau of Yards and 
Docks, and with the Chief of the Bureau of Con- 
struction. 

Evidence before the Select Committee of the Senate on 
Naval Supplies, with the Report thereon. 

Correspondence with the Chairman of the House Com- 
mittee on Naval Affairs. 

Debate in the House of Representatives, March 2, 1865. 



66 

Speeches of Hon. John P. Hale, in the Senate, January,, 

February and May, 1865. 
Arguments of Hon. B. F. Thomas, and of the Judge 

Advocate, in the case. 
Review of the Argument of the latter, by Franklin 

W. Smith. And finally,— 
Opinion on the case to the President of the United 

States, by Hon. Charles Sumner, March 16, 1865. 

These are all the papers known to us, which connect 
the Respondent with the Navy Department, from the 
auspicious beginning down to the Court-martial, and to 
the present hour. 

Your Committee, as the result of their labors, now 
express the opinion without condition or qualification, 
that the "Charges and Specification of Charges pre- 
ferred by the Secretary of the Navy against Franklin 
W. Smith," for "fraud," and for "wilful neglect of 
duty," are not sustained by the written and printed 
matter which have been mentioned in this Report. 

H: Hi Hi Hi Hi 

"Whoever reflects upon the record of the proceedings 
of the court-martial in the case before us — which, as we 
have once said, fill (1,913) one thousand nine hundred 
and thirteen manuscript pages — may wonder, possibly, 
that our Associate did not lose his understanding and 
his life, ere the weary, wearing, agonizing sixty-eight 
days were at an end. Forty-five other days elapsed 
before the Judge Advocate concluded his argument — 
days of continued agony. 

" And all this in the name of Justice ! The noble 
man who bore ' his faculties so meek ' ; who was * so 
clear in his great ofiice ' ; on whom ' Treason has done 
his w^orst'; and who, 'after life's fitful fever, sleeps 
well ' — he for whom these rooms are draped in * suits of 



67 

solemn black ' ; he, the Chief Magistrate of the nation, 
interposed, and the convicted but innocent merchant 
became free — ^free ! 

'' Bandaged eyes and even scales are the emblems of 
justice. Before a civil tribunal, State or Federal, our 
Associate would have been tried on a suit of contract by 
a judge of high legal attainments, who would have 
confined the evidence to the case ; and who would have de- 
cided to admit or reject testimony after arguments of counsel, 
<xnd in the presence of hath parties to the issue. And, non- 
performance proved, the jury would have returned a 
Yerdict of damages in dollars and cents ; and (no ap- 
peal) here the matter would have terminated. Justice 
is even-handed between individuals, and should be so 
between governments and citizens. For the first time, 
<and upon this point, we quote from Mr. Smith's * Re- 
view of the argument of the Judge Advocate,' thus : 

"The loss of interests to Smith Brothers & Co. has 
not been less than two per cent, upon their sales, 
through the delinquency of government payment ; or 
$25,000 on $1,250,000; although the early contracts 
stipulated that payments ' will he paid, by the Navy Agent 
within thirty days after bills, duly authenticated, shall 
have been presented to him.' " 

Again : 

" It required energy and caution to prevent these con- 
tracts from being disastrous. Many were abandoned 
by other parties on account of losses involved, and re- 
lief bills were passed by Congress for contractors ; but 
Smith Brothers & Co. strove to fulfill their contracts with 
the government (as with all men) up to the time of the 
violent proceedings against them — contracts on which the 
<jdvance realized to the government was certainly not less than 
$200,000." 



68 

"The 'advance' was for the benefit of the country; 
but, on the other hand, the country should, as ' between 
man and man,' make good the ' loss,' whether much or 
little ; because the country is not entitled (in popular 
phrase) to ' both sides of the bargain.' The result, then, 
on this branch of our inquiry is, that on a question of 
contract, FRANKLIN W. SMITH, and not the Gov- 
ernment, IS THE PARTY ENTITLED TO A VERDICT FOR 
DAMAGES. 

^ ^ i^ * * 

The report concludes as follows : 

" And now we append the ' Memorial of Senators and 
Representatives in Congress from Massachusetts to the 
President of the United States, August, 1864,' and the 
' Testimonial of mercantile and manufacturing houses, 
July, 1864,' which, as will be seen by the dates, were 
written previous to the trial, but after the arrest ; and 
the ' Opinion of the Hon. Charles Sumner,' prepared by 
request of the President of the United States, which, 
on reflection, we deem necessary, as warranting our 
own conclusions in several important particulars, and, 
among them, our unconditional condemnation of the six- 
teenth section of the act of Congress of July 17, 1862, 
as applicable to civilians in the loyal States of the 
Union. 

" IN CONCLUDING THE TASK ASSIGNED, WE DECLARE 
THAT, IN OUR 'JUDGMENT,' FRANKLIN W. SMITH IS 
AN HONEST MERCHANT, AND SHOULD STAND ACQUIT- 
TED OF ALL « FRAUD ' AND ALL INTENTION OF ' FRAUD,' 
AND THAT, CAREFUL AND INDUSTRIOUS IN BUSINESS, 
HE SHOULD BE ACQUITTED ALSO OF ALL WILFUL 
NEGLECT OF DUTY.'" 



" Respectfully and unanimously submitted. 

W. B. SPpONER, 
CHARLES G. NAZRO, 
CHARLES 0. WHITMORE, 
OTIS NORCROSS, 
JAMES C. CONVERSE, 
JOSEPH M. WIGHTMAN, 
LORENZO SABINE. 

" Rooms of the Board of Trade, 
" Boston, May 16, 1865." 

This Report, sixty-one pages octavo, was unanimously 
adopted by the Board, and Mr. Smith was re-elected a 
Director without a dissenting vote. It was published 
with the Annual Report of the Board for 1865. 



New York Tribune, January 13, 1866. 
^'The celebrated case of Franklin W. Smith and 
brother was one of those which most largely helped to 
bring military tribunals into public contempt. Those 
two gentlemen were arrested and kept in confinement, 
their papers seized, their business destroyed, their repu- 
tation damaged, and a naval court-martial, ' organized 
to convict,' pursued them unrelentingly till a wiser and 
juster hand arrested the malice of their persecutors. It 
is known that President Lincoln, after full investigation 
of the case, annulled the whole proceedings, but it is 
remarkable that until this week the actual record of his 
decision could never be obtained from the Navy Depart- 
ment. An exact copy is still withheld, but the following 
was presented on Wednesday to the Boston Board of 
Trade as being very nearly the words of the late President: 

" Whereas, Franklin W. Smith had transactions with 
the Navy Department to the amount of one million and 



70 

a quarter of a million of dollars ; and, whereas, he had 
the chance to steal a quarter of a million, and was only- 
charged with stealing twenty-two hundred dollars — and 
the question now is about his stealing a hundred — I don't 
believe he stole anything at all. Therefore, the record 
and findings are disapproved — declared null and void, 
and the defendants are fully discharged." * 

"It would be difficult to sum up the rights and wrongs 
of the business more briefly than that, or to find a 
paragraph more characteristically and unmistakably 
Mr. Lincoln's. The effect of the President's decision 
was not to pardon the Messrs. Smith — it was to make 
the proceedings against them void ah initio, to censure 
the Court, to annul its findings, to repair, so far as any 
remedy could repair, the atrocious injustice of the pro- 
secution, and to restore the innocent defendants to the 
full enjoyment of that honorable repute of which an 
interested malignity had attempted to deprive them." 

* The illeg-al and spiteful suppression of the literal decision of 
President Lincoln, despite the protest of Senator Sumner, by the 
Secretary of the Navy during* his second term under President 
Johnson, is detailed under Addenda No. VII. 



71 



ADDENDA 



MEMORIAL OF SENATORS AND REPRESENTA- 
TIVES IN CONGRESS FROM MASS. TO THE 
PRESIDENT OF THE UNITED STATES, CON- 
CERNING SMITH BROTHERS AND CO.; PRE- 
PARED BY HON. CHARLES SUMNER. 

TO THE PRESIDENT OF UNITED STATES: 

The undersigned, Senators and Representatives in 
Congress from Massacliusetts, ask leave to call your 
serious attention to the proceedings initiated by the 
Navy Department against Benjamin G. Smith and 
Franklin W. Smith, of Boston, of the "firm of Smith 
Brothers & Co., a much respected firm, which has 
hitherto enjoyed the confidence, personal and mercan- 
tile, of the community where they reside. Among their 
neighbors and friends, these proceedings have already 
attracted much attention, and awakened corresponding 
feeling. 

The proceedings have seemed to be harsh, vindictive^ 
and unnecessary : 



72 

(1.) In the character of the arrest of Messrs. Smithy 
which was attended by circumstances of severity utterljr 
unjustifiable. 

(2.) In requiring bonds to so large an amount as half 
a million of dollars. The fact that the parties in ques- 
tion easily obtained bonds for a much larger amount 
does not render this exaction of " excessive bail " less 
obnoxious to the requirements of the Constitution and 
of justice, or less indicative of the spirit in which these 
proceedings have been conducted. 

(3.) In the seizure of their books and papers, which 
are still detained, although regarded by their eminent- 
counsel as important to their defence. 

(4.) In turning into a military offence what is more^ 
proper for a civil tribunal, and dragging these defend- 
ants before a court-martial. 

(5.) In transferring the proceedings from Boston, 
where the parties reside, and the transactions in question 
occurred, to Philadelphia ; thus increasing greatly the 
difficulties and the expense of the defence. This will be^ 
appreciated when it is understood that the witnesses are 
very numerous, and chiefly engaged in mercantile busi- 
ness, so that they cannot leave Boston without the neglect, 
of their private interests. 

The undersigned, on reviewing these circumstances, 
which are so inconsistent with the administration of 
justice in its ordinary forms, have been at a loss to 
account for the spirit which has been manifested in the 
prosecution. If they look at the trivial character of most 
of the specifications against the defendants, they are still 
more at a loss. It is difficult to account for such elab- 
orate and persistent harshness, without yielding to the 
prevailing belief that other motives than the vindication 
of justice have entered into this case. 



73 

The undersigned are not strangers to the fact, that 
one of these defendants, in the discharge of what he be- 
lieved to be his duty as a good citizen, has, by corres- 
pondence and testimony before committees of Congress, 
been brought into collision with officers of the Navy De- 
partment ; and there is too much reason to believe, that 
some of these officers have allowed themselves to be gov- 
erned by personal feelings throughout these strange 
proceedings. 

Under these circumstances, the undersigned most res- 
pectfully ask your assistance in securing justice to these 
defendants, according to the common course of proceed- 
ings at law. They are acquainted with the statute 
which provides court-martial for contractors in certain 
cases, and they are unwilling to make any suggestion 
which shall interfere with its efficiency ; but they have 
no hesitation in saying, that such a statute, which was 
intended for extreme cases, should not be applied to a 
case like the present, where, with a single exception, the 
questions are simply whether the defendants complied 
with their contract, and therefore, from their nature, can 
be better considered by the ordinary tribunals, accus- 
tomed to such questions, than by a naval tribunal com- 
posed of officers who have no familiarity with them. 

If the pending proceedings against the Messrs. Smith 
should be continued, there are two courses with regard 
to them which may be recommended : 

First, That they should be transferred at once to the 
United States Court in Massachusetts, and be placed 
under the direction of the learned Attorney of the United 
States for that district. 

Secondly, If the foregoing order is not deemed expe- 
dient, on the existing evidence, then a commission or 
commissioner might be appointed by the President to 



74 

inquire into the circumstances attending the arrest of 
the defendants, and also into the nature of the charges 
against them, in order to ascertain and report if there is 
any sufficient reason for the singular harshness to which 
they have been already subjected, and also for the ex- 
ceptional proceedings which have been instituted against 
them. 

But for the sake of justice, and to relieve the G-overn- 
ment from all suspicion of undue harshness, the under- 
signed protest against the spirit in which these proceed- 
ings have been conducted, and appeal to you for such 
remedy as shall seem best ; to the end that the public 
interests may be adequately protected without any sacri- 
fice of the rights of the citizen, and without needless 
interference with the order of business. 

(Signed) 

CHARLES SUMNER, 
HENRY WILSON, 
THOS. D. ELIOT, 
HENRY L. DAWES, 
S. HOOPER, 

JOHN B. ALLEY, 

by C. Sumner, as by letter. 

D. W. GOOCH, 
WILLIAM B. WASHBURN 
JOHN D. BALDWIN, 
GEORGE S. BOUTWELL. 
August, 1864. 

Extract from a Letter of Hon. A. H. Rice. 

Bangor, Me., August 15, 1864. 
To the President: 

H: Hi ^ H: * 

I have no hesitation in saying, that the community in 
which Smith Brothers reside is quite unanimous in be- 
lieving that they have committed no offence of a criminal 



75 

or fraudulent character ; and that the proceedings which 
have been instituted against them are not only need- 
lessly severe, but they are especially objectionable, on 
the ground that they inflict upon them irreparable in- 
jury, before they have been found guilty of any crime. 
Measures so extraordinary and severe naturally give 
the impression that the Government esteems them guilty 
of extraordinary crimes; or else that the Government 
is using its authority and power, not for the protection, 
but for the destruction of private, individual immunities. 

H: H: Hi H: * 



II. 

TESTIMONIAL OF MERCANTILE AND MANUFACT- 
URING HOUSES AS TO THE QUALITY OF MER- 
CHANDISE PURCHASED BY SMITH BROTHERS 
FOR GOVERNMENT."^ 

We, the undersigned, having furnished Smith Bro- 
thers & Co. with merchandise at various times within the 
past three years, destined for the use of the United 
States Navy Department, hereby certify that we have, 
in all cases, sold and delivered to them such qualities 
as we believed would be entirely satisfactory to and 
fitted for the use of the Department, and such as we 
should have supplied had the order been made upon us 
directly by the Government. 

Boston, July 20, 1864. 

Jlevere Copper Co., by S. T. Snow, Agent, 

Sheet and Bolt Copper and Sheathing Metal, Ingot Copper, 

Tin, Comp. Nails. 

Richards & Co Metals, Wire, &c. 

J. H. Chad wick & Co., Agents Boston Lead Co Lead. 

*The value of the merchandise thus purchased by Smith Bros. 
for the Navy Department has been not less than $1,000,000. 



76 

Fuller & Dana Iron, 

Banker & Carpenter Paints, Drugs, Oils, &c. 

Southard, Herbert & Co Sperm and Whale Oils. 

Tuckerman & Cate Iron. 

Holmes, Booth & Hayden, by B. i". Adams, Agent, 

Sheet Brass, Brass and Copper Wire. 

E. P. Cutler Pig Iron. 

James L. Mills & Son Dealers in Cooperage Stock. 

Bush & Mills Dealers in Stoves and Iron. 

Davis & Chaddock Fire Brick, &c. 

Foster & Roby Composition Lights, Buttons, &c. 

F. W. Lincoln, jun., & Co Patent Logs, Glasses. 

Gay, Manson & Co Iron and Steel. 

David Barnes & Co Anchors, Chains, and Ship Chandlery. 

Henry W. Burr Packing and Hose. 

Francis McLoughlin Brushes. 

Flint & Hall Lumber. 

Sanborn, Richardson & Co Iron Pipes. 

Fairbanks, Brown & Co Scales. 

Lewis Audenried & Co., per H. W. Morse, Att'y, Cumberland Coal. 

Dodge, Gilbert. & Co Hardware. 

Shelton & Cheever Leather, Leading and Suction Hose. 

John C. Haynes & Co Drums. 

A. N. Clarke & Co Leather Belting. 

Underbill Edge-Tool Co Navy Hatchets. 

Nathaniel R. Leman, jun , Wool Skins. 

BuUard, Abbott & Co SteeL 

T. Quincy Browne Ingot Copper. 

American Net Company, by Wm. Howe, P. Attorney, 

Nets, Seines, Lines, and Twines. 
Dalton & Ingersoll Plumber Stock. 

B. Y. Pippey & Co Cotton Waste. 

Vincent Laforme Boatswains' Calls. 

H. H. Morse, Supt. A. S. G. Co Steam Gauges. 

Boston Belting Co., John G. Tappan, Treas. India-Rubber Goods. 

E. R. Morse Iron Works. 

Thos. Flint & Co Hardware. 

Herman Strater & Sons Copper Utensils. 

J. S. F. Huddleston Meteorological Instruments. 

Howe & French , Drugs and Paints. 



77 

Linden & Meyer Quicksilver. 

Samuel Hill Chains. 

George L. Stearns & Co Lead. 

Chas. V. Poor & Co Drugs and Paints. 

Boston & Sandwich Glass Co., per Sewall H. Fessenden, Ag't., 

Port Lights. 

Geo. W. Robinson & Co Ship Lights, Hinges, &c. 

J. Kittridge & Co Naval Stores. 

Daniel Cummings & Co "Wooden Ware. 

Old-Colony Iron Co « Nails. 

Day, Wilcox & Co Leather. 

P. Waldemeyer & Co Leather. 

Henry H. Packer Ratchet Drills. 

Deans & Bagnall Metals. 

List of Parties, not in Boston, who have signed the above paper: — 

Townsend & Co., New York Pig Iron. 

Samuel Mulliken & Co., New York Steel. 

Kemble & Warner, New York Boiler Iron. 

American Screw Co. , Providence Screws. 

Crocker Bros. & Co., Tauton Nails and Rivets. 

Phoenix Manufacturing Co., Tauton Crucibles. 

Plymouth Mills Rivets. 

Thos. Prosser & Son, N.J Boiler Tubes, &c. 

Providence Tool Co., Providence Bolts and Hardware. 

Kno vvles & Sibley, Warren, Mass Steam Pumps. 

Theophilus N. Breed, Lynn Grindstones. 

C. Drew & Co., Kingston Augers. 

J. Roberts & Co., Waltham, Mass Tarred paper. 

Plymouth Tack and Rivet Co Nails, Tacks, &c. 

R. Dudgeon, N. J , Hydi-aulic Jacks. 

Munsell & Thompson, N. J Forges. 

Trenton Iron Co ^ Bar Iron. 

L. & A. G. Coes, Worcester Wrenches. 

New-Bedford Copper Co Copper Goods. 

Buck Brothers, Worcester Chisels. 

Lesley & Co., Philadelphia Handirons. 

Lenox Iron Works, Lenox, Mass Pig Iron. 

Novelty Iron Works, N. J Apparatus. 



78 

William Porter & Son, New York Lanterns. 

American Butt Co Butts. 

Cheney & Lerow .....Hammers. 

J. L. Hommedieu Aug-ers. 

M. J. Ryerson .\ . . . Hammered Iron. 

C. E. Pennock & Co Boiler Iron. 

Westbrook Forge Co Hammered Iron. 

Bemis& Call, H. W. & T. Co Hardware. 

Charles Alden Emery Cloth and Facings. 

Roys, Wilcox & Co ' Turners' Tools. 

Eagle Lock Co Locks. 

Kinsley Iron Manufacturing Co Bar Iron. 

III. 

FARTHER EVIDENCE OF THE "ORIGIN OF THESE 
UNFORTUNATE PROCEEDINGS" - IN THE MOR- 
TIFICATION AND REVENGE OF THE CHIEF OF 
THE BUREAU OF ORDNANCE OF THE U. S. NAVY 
DEPARTMENT. 

The hostility of this official had already been indi- 
cated, resulting from the overruling of his decision by 
the umpire in a matter of boiler iron. That settle- 
ment was effected on the 6th of February, 1864. 
. On the 25th of February, F. W. Smith was informed 
that this Chief of Bureau had asserted in his office in 
Washington that Smith Brothers had delivered Revely 
tin for Banca, and had offered to refund money; a 
charge which the firm immediately denied. The Chief 
replied, reiterating the charge and enclosing a voucher 
for 504| pounds Banca tin at 56 cents, alleging that it 
was Revely, and demanding a refund of money. 

Smith Brothers replied : 

"We claim this was Banca, as described. You offer 
"no proof, but merely assume to the contrary. Any 
"further claim for restitution by us must be accompa- 
" nied hy proof ihdii the articles were not as described. 



79 

Hi * "We called upon you to comply courteously 
" with your request for a copy of our paper upon * pur- 
" chases of naval supplies.' Conversation ensued, in- 
**itiated spiritedly by yourself, concerning the delivery 
"of Revely tin for Banc a, though you disclaimed any 
" insinuation upon Smith Brothers. 

"Yet a scandalous perversion of this conversation 
"quickly followed us upon our return. This experience 
" will forbid further communication in future with the 
" bureau, except by writing. 

"Is is appropriate to remark, under these circum- 
" stances, that the important relations of government 
" officers should keep them free from defamatory gossip ; 
" especially when it is known that it has been traced 
"from thence directly to the public press. 
" We remain your obedient servants, 

"SMITH BROTHERS & CO." 

Despite the offer of proof to the contrary, the Chief 
maintained his charge as to the tin, and wrote Hon. 
John P. Hale, chairman of the Senate Committee, to that 
effect on the 21st of May, 1864. 

On the same date, he attempted to ^^make the wool 
fly " by testimony as follows : 

Question. In your answer to the twelfth interrogatory 
you state that there was $100,000 worth of tin called 
Straits tin furnished for Banca tin ajid charged as Banca 
tin. Do you know of your knowledge whether Smith 
Brothers & Company ever delivered any tin for Banca 
tin that was not ? 

Answer. I have every reason to believe that they 
never delivered one single pound of Banca tin, although 
in one bill they charged Banca tin and delivered Straits 
tin. 

Subsequently the witness was asked : 



80 

Question. Were these interrogatories submitted to 
you some time ago by the Navy Department ? 

Answer. They were not submitted to me by the Navy 
Department. 

Question. You have seen them ? 

Answer. Yes, sir. 

Question. Where did you see them ? 

Answer. I prepared them myself, because I was told 
by the Navy Department that I should be sworn. 

Question. Did you prepare your answers to them in 
writing before you came here ? 

Answer. Yes, after having full knowledge of the 
facts, and after going over the whole business. 

The falsity of this testimony was finally established by the 
testimony of the naval officer, Inspector of Ordnance at the 
Navy Yard, and the personal friend of the Chief as admit- 
ted in evidence, by testimony as follows, from the record : 

" In my examination to-day I have found a requisi- 
" tion that was supplied by Smith Brothers, of Banca 
*' tin, May 16, 1863. Banca tin was furnished by Smith 
*' Brothers on that occasion. I know it to be Banca tin. 
*' There were 504| pounds at 56 cents, Banca tin." 

This swift witness was the author of the "dead-cock- 
in-the-pit " letter ; of whom Senator Sumner wrote : 

" The writer of this letter, after appearing before the 
" Senate Committee at a later day, came on from Wash- 
" ington to appear as a witness against the respondents 
*' at Charlestown, where he underwent a cross-examina- 
" tion — on which I forbear to comment." 



81 



A SPECIMEN OF THE METHODS OF THE DETEC- 
TIVE INQUISITION -TERRORISM OF WITNES- 
SES-FALSE ENTRIES UPON AFFIDAVITS. 

Extracts from the Sworn Testimony op a witness 

BEFORE THE DeDECTIVE INQUISITION. 

Interrogatory 26. To the question whether he had 
sworn to the statement cited, the witness answered: 
" It might be something similar to that. " After this 
man read what was written, another man " wrote on a 
piece of paper." 

Interrogatory 27. Did he not read it over to you after- 
wards ? 

Answer. He did, sir. 

Interrogatory 28. And did you not sign it ? 

Answer. Yes, sir ; / told him there were a great many 
things in that paper that were not right, and he said it 
was not anything very particular. I wanted to get it 
right. He wanted me to go down stairs and sign it, and 
I told a man down there I did not want to sign it. 

i^ i|: i^ if: % 

Answer. I did not think it was right — anywhere near. 
He did not ask me any questions. I did not think that 
was right at the time. 

Interrogatory 38. Wherein Avas it not right ? 

Answer. Because he sat down and read it over, and 
wrote what he had a mind to, and I told him about a 
great many things, and he said it did not amount to 
anything. There were things there stated that there 
was nothing of truth in. 

^ % i^ ifc * 

Answer. The objections that I made to signing that 
paper were, that he sat down there, and took and read 



82 

off all his stuff, and if I said anything about it, he said 
that would not make any difference, and he read off what 
he wanted. He called another man to write, and I told 
him it was not right. 

Cross-Interrogatory 15. Then this was it : one man 
dictated to another man what to write ; told him what to 
write; the other man wrote down what the other directed 
to write ; and thereupon you were required to sign it. 
Is that so ? 

Answer. That was so. 

Interrogatory. Did you receive a message from this 
man, that if you did not produce your books they would 
come and take them by force ? 

Answer. ]^o ; but he said so with his own mouth, with 
his own lips. When I was up there he said it. 

The witness added to his answer to the last question : 
*'And he said that he would make me go to Washington.'* 

Comment on the above in Argument of Hon. B. F» 
Thomas, Counsel for F. W. Smith. 

" Let this record stand without a line or word erased* 
" It is confused, indistinct, stupid, if you will, but rays 
" of truth stream through it as sun light through the 
" clouds. It is not an artificial story. * ^ The affida- 
" vit was carelessly, recklessly taken, without any re- 
" gards of the rights of the witness, or of the party 
" whom it was the design of the party taking it to im- 
" plicate. 

" If the witness did not exhibit all the courage and 
" independence becoming an American citizen, some 
" allowance must be made for the times. 

" The merchants with whom he had been dealing had 
" been sent to a fortress without any complaint filed 



83 

** against them ; and without any just cause of com- 
'' plaint, what should save him from Fort Warren or 
^' Washington ? 

" This record may stand as a sample of the method in 
" which this prosecution has been got up against the 
^' accused before it passed into the hands of the Judges 
^' Advocate and of the unseen powers and instruments 
*' with which he has had to contend; the poisoned 
" arrows coming out of the darkness." 

Is not this the record of a Star Chamber, in the Ameri- 
can Republic, midway of the nineteenth centurv ? 



AT. 

FALSIFICATIONS AND PERVERSIONS OF TESTI- 
MONY, BY JUDGES-ADVOCATE. 

In a Review of the Argument op the Judge Advo- 
cate, BY F. W. Smith. 

The Prefatory Note was as follows : 

The errors and perversions of testimony in the argu- 
ment of the Judge- Advocate, were so many and so gross, 
that it was thought expedient to notice a few of them. 
They might mislead those who had no opportunity to 
consult the record of the evidence. 

The engagements of my counsel being such that they 
could not give to the matter early attention, I have, with 
their concurrence, attempted the task myself. 

T» T» ^ ^ ^ 

I submit the result of this farther effort to inform the 
public of the facts in the case, to the candid judgment 
of those who may be interested to examine it. 

F. W. S. 



84 

Sixty-eight citations from the argument of the Judge- 
Advocate were compared with the stenographic record 
of the court, to iUustrate the reckless falsification and 
perversion of the testimony. This Review was mailed 
to all members of Congress and to the revising counsel 
of the Navy Department ; after its receipt, he abandoned 
all charges save the one hundred dollars on tin. 

The introduction to the document (144 pages octavo), 
is as follows : 

On the 11th day of January, 1865, the one hundred 
thirteenth dap from the commencement of the hearing. 
Judge Advocate Smith concluded his reply to the argu- 
ment of counsel for the defence. The most sacred inter- 
ests of the respondent'were now to be adjudicated, not 
by the unanimous decision of twelve of his fellow-citi- 
zens, but by the vote of four among seven naval officers, 
from distant sections of the country, appointed by the 
accusing party, and sworn to secrecy as to their respect- 
ive judgments ; the Judges- Advocate remaining with the 
court. 

This is a feature of courts-martial peculiarly abhor- 
rent to our sense of justice, that when they have had the 
last W(yrd in argument, however unjust in spirit or untrue in 
statement, the Judges-Advocate are present at the private 
deliberations of those acting as judge and jury, deciding 
upon both law and fact. 

% ^ tJ ■ tT ^ 

From among more than five thousand business and pri- 
vate letters and copies of letters, forcibly seized from 
Smith Brothers & Co., and subject to the scrutiny of 
detectives for months, there were but two which could 
be perverted to their apparent injury, except that, upon 
the misinterpretation of which, the specification as to 
Sterling iron was based. 



85 

It is, therefore, necessary to refute these insinuations ; 
and to show that said letters, like every writing or act 
of Smith Brothers & Co. upon the record of the hearing, 
so far from tarnishing, do vindicate their reputation for 
integrity. 

The final recapitulation of arguments in defence from 
the Review was prefaced as follows : 

The defendant asks for an impartial judgment upon 
the record of his defence ; the record being viewed in 
the light of all surrounding circumstances. 

A BUSINESS OF $1,250,000, covering an almost infinite 
variety of detail, prosecuted at a period of unprecedented 
excitement in the business world; of scarcity of mer- 
chandise, of financial panic and uncertainty ; a business 
involving inevitably the " work of other men's hands," 
and reliance upon other men's faithfulness — this business 
hunted, pried into, from March until September, by a 
secret detective inquisition that called before it more than 
one hundred different parties to be probed and cate- 
chized; an inquisition that in June, under military 
authority, seized all the business and private books, 
papers and correspondence of the firm from warehouse 
and dwellings, that had then all original letters, invoices, 
and entries under its hand, by which it could trace every 
transaction from its inception to its conclusion, its profit, 
its payment ; that called to its aid accountant experts to 
fathom the ledgers and cash books ; this business, thus 

BISSECTED AND ANALYZED WITH HOSTILE INTENT AS NEVER 
BEFORE WAS A LIKE BUSINESS SCRUTINIZED IN NeW ENG- 
LAND, REVEALED FIVE SUCH CHARGES OF FRAUD, AS HAVE 
BEEN ANSWERED AND DEFENDED BY THE RESPONDENT: 

Five charges which, if proved, would not amount to two 
thousand dollars ; less than l-6th of 1 per cent upon the 
amount of the business. Such were the developments 



86 

of an inquisition upon, as the Judge-Advocate asserts, 
"an extensive system of frauds." Such, the charges, 
upon which, in addition to the severities and indignities 
above mentioned, the respondent was prosecuted, bail 
demanded of five hundred thousand dollars, and he was 
subjected to a military trial of four months' duration, 
nearly ruinous to his health, destructive to his business, 
and costing him in legal and other expenses attending 
the trial, more than $20,000, and in losses resulting to 
his business of an equal amount. 

The terse, incisive verdict of President Lincoln upon 
this history, it has been seen, was based upon the self- 
evident absurdity of the allegations. 



COST OF NAVAL SUPPLIES AFTER THE SUPPRES- 
SION OF THE BUSINESS OF SMITH BROTHERS. 
PROFITS OF THEIR SUCCESSORS. PRICES IN- 
CREASED 33 1-3 PER CENT. 

The military seizure of the warehouse of Smith Bro- 
thers & Co. was at the precise period of advertisement 
for annual supplies. Although the inquisition had been 
in session three months in Boston, no charges were pre- 
ferred until a month after the pillage of their premises 
and the paralysis of their business, at a great loss. 
Many papers have never been recovered. 

Thus, when it had been found that official opposition 
and annoyance would not drive them from the field, the 
war power was invoked, their business wrested from 
them, and all their resources of mental endurance and 
pecuniary strength demanded in defense from utter 
ruin. Then, upon the award of new contracts, men 
who had solicited them to participate in bribery, and 



87 

had been repelled, succeeded to government patronage^ 
So great was the shock to the business community by 
the violence toward Smith Brothers (as had been pre- 
dicted by the delegation from Massachusetts, in their 
paper to the President,) that respectable mercantile 
houses dared not enter the competition. 

Therefore while Franklin W. Smith was being 
hounded on a pretense of one hundred dollars differ- 
ence in value between Baiica and Revely tin (where no 
difference was proven to exist), the government entered 
into contract to such astounding damage as the follow- 
ing contracts reveal : 

These were the " spoils " to private parties from the 
government treasury, following the "raid" of the Navy 
Department on Smith Brothers for an alleged wrong of 
$100 ; a raid that cost the government not less than 
$40,000, for expenses of inquisition and prosecution. 



88 



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Senator Sumner, in his seventh argument in defence 
of the tin transaction of Smith Brothers, says : 

" The price of the tin was 52 

Add store expense and interest at 5 per ct. .0260 

.5460 
Com. @ 5 percent 0273 

On but 504 pounds the price charged was 

but 57 cents 5733 

" In the contract of their successors, tin at a cost of 62 
cents, was sold for $1 in a quantity of 50,000 pounds." 



Exhibit of the Profits of Smith Brothers & Co. on 
grovernment business. 

During the cross-examination of Mr. B. Q. Smith, the 
Judge Advocate produced from the papers of Smith 
Brothers & Co. an elaborate exhibit of the profit and 
loss upon air their government business, from its com- 
mencement in 1861 to February 1, 1862. 

Mr. Smith testified that it was a private paper, pre- 
pared by his brother for his own satisfaction, and that 
it was among those forcibly abstracted from his brother's 
dwelling-house. It was the only statement of the kind 
which had been made, and was most opportune evi- 
dence in support of his account of the profits from the 
business of the firm. 

Mr. B. Gr. Smith further stated that he had never be- 
fore seen the paper, except at the time it was prepared, 
and that he then observed only the results, not spend- 
ing over ten minutes in its examination. 

This exhibit, accidentally produced by the prose- 
cutors, DEMONSTRATED THAT THE AVERAGE NET PROFITS 

TO Smith Brothers & Co., upon government business, 

HAD been only ABOUT FIVE PER CENT. 



90 

VII. 

SUPPRESSION OF THE DECISION OF PRESIDENT 
LINCOLN, BY SECRETARY WELLES, FOR FOUR 
YEARS, DURING THE JOHNSON ADMINISTRA- 
TION — REVISION OF THE VERDICT OF THE 
COURT BY COUNSEL OF THE NAVY DEPART- 
MENT. 

Upon the annulment of the case by President Lincoln, 
there was great public interest to know the precise terms 
of his decision. His assassination followed immediately ; 
and it was supposed that the promulgation of his disap- 
proval was simply overlooked in the direful excitement 
of that tragedy. Meanwhile it was reported that the 
endorsement of the President was remarkably quaint 
and characteristic ; and a humorous version of it was 
published throughout the country. (V. Ex. N. Y. 
Tribune. ) 

At length Senator Sumner, in behalf of Mr. Smith, 
called upon the Secretary of the Navy for an official copy 
of the record. To his astonishment and indignation it 
was refused by the Secretary, on the ground that it was 
his duty to shield the court from further reprehension. 
A lengthy correspondence ensued, Mr. Sumner claiming 
that the record was not only of right the property of Mr. 
Smith, but also of the public. Tired of conflict, the res- 
pondent in the case decided to await Secretary Welles' 
retirement from office. 

Not until 1869 did he have access to the record of the 
court, in the arcl^ves of the Navy Department. It may 
be seen on their shelves, in ten massive volumes /olio ; by 
far the most voluminous and, consequently, most expen- 
sive record of a court-martial since the foundation of the 
government. 

Extraordinary details are revealed in that record, that 
will have yet a more full compilation. This summary 
relates more to a personal vindication than to the great 



91 

public importance of the case ; which was impressively'' 
set forth by Judge Parker in his last lecture as Professor 
of the Harvard Law School. 

Following the record of the court is the Opinion of the 
Reviser of the Department. It labors to sustain the war- 
rant for the case, but as President Lincoln said of it to 
Senator Sumner, he is compelled to abandon all allega- 
tions for this intensely fought prosecution, except the 
''^ sure thing on ^Ae ^m," involving less than |100. He 
decided as follows : 

First. The finding of the court on tin was " justified."^ 

Second. The finding of the court on emery cloth, less 
clearly made out, and less important. 

Third. " The same observation is, in my judgment, 
" applicable to the third specification under both 
" charges. The delivery of inferior articles is very small 
" in comparison with the whole quantity delivered under 
" the contract, and may well have happened through 
" inadvertence." 

Secretary Welles had good need to protect his court 
not only from farther " public reprehension," but ridi- 
cule, in view of the record to which the seven old naval 
officers attached their verdict of 

a i Pfoven^' as to 24 single articles of hardware in a 
contract for 12,564 single articles ; and ' not proven ' as 
to the others." 

At this point the verdict of the Boston Board of Trade 
is apposite : ♦ 

"In view of such facts, the charge of 'fraud' or of 
" fraudulent intention is utterly frivolous. The wonder 
" indeed is, that in so large a business, and in the con- 
*' dition of the market since the beginning of the war, 
" the number of articles below the standard quality 
" should be so very limited. Of the general good qual- 



92 

<* ity of the goods and wares sold and delivered, there] 
*^ can be no dou^t." — Report of Special Committee. 

Fourth. " ^ Not proven'' — obviously correct and proper." 
Fifth and Sixth. " Stricken out by the court." 
Seventh. " The exclusion of testimony offered by the de- 
fence was an error in law and in derogation of hisright." 
These were the conclusions by the counsel of the con- 
spirators, from 2,500 pages of testimony, gathered after 
a year of inquisition and court-martial ; at a cost to the 
government of at least $40,000 ; to the respondents, in 
legal expenses, printing, etc., of $20,000 ; and of dam- 
ages in aggregate that $100,000 would not compensate. 
This will be accepted as within the fact, when it is 
realized that the defendant's business, established in 
Boston and New York, after twenty years of enterprise, 
was utterly destroyed by the onslaught ; all books and 
papers being held for the period of nine months from 
their seizure, and the utmost powers of mental and 
physical endurance being demanded in defence of all 
that could make life desirable. Not only were all busi- 
ness facilities collapsed by the blow, but the defendant 
could only recover mental poise and strength to re-enter 
upon the activities of life by absolute retirement to the 
quiet of rural pursuits. 

The sense of outrage at the above revision of the 
counsel of the Navy Department, sent by President 
Lincoln to Senator Sumner for his review, prompted his 
emphatic indignation : 

" If a mountain in labor ever brought forth a mouse, 
" it is this mountainous prosecution, whose only off- 
" spring yet crawling on earth is an allegation of loss to 
*' the United States of one hundred dollars ! But if we 
" look farther at this transaction, it will be seen that it 
*' is absolutely unimpeachable." 



98 



VIII. 

THE CAIN TO GOVERNMENT UPON CONTRACTS 
WITH SMITH BROTHERS. 

EXTRACT FROM REPORT OP THE BOSTON BOARD OP TRADE. 

" Bandaged eyes and even scales are the emblems of 
justice. Before a civil tribunal — State or Federal — 
our Associate would have been tried on a suit of contfaGty 
by a judge of high legal attainments who would have 
confined the evidence to the case; and who would have deci- 
ded to admit or reject testimony after arguments of counsel, 
and in the presence of both parties to the issue. And, non- 
performance proved, the jury would have returned a 
verdict of damages in dollars and cents ; and — no ap- 
peal — here the matter would have terminated. Justice 
is even-handed between individuals, and should be so 
between Governments and citizens. For the first time, 
and upon this point, we quote from Mr. Smith's ' Review 
of the Argument of the Judge Advocate,' thus : — " 

" The loss of interest to Smith Brothers & Co. has not 
been less than two per cent upon their sales, through the 
delinquency of Government payment ; or $25,000 on 
$1,250,000; although the early contracts stipulated that 
payments ' will be paid by the Navy Agent within thirty 
days after bills, duly authenticated, shall have been pre- 
sented to him.' " 

Again : — 

*' It required energy and caution to prevent these 
contracts from being disastrous. Many were abandoned 
by other parties on account of losses involved ; and re- 
lief bills were passed by Congress for contractors : but 
Smith Brothers & Co. fulfilled their contracts with Gov- 



94 

ernment (as with all men), coniraets on which the advance 
realized to Government was certainly not less than $200,000." 

''The 'advance' was for the benefit of the country; 
but, on the other hand, the country should, as ' between 
man and man,' make good the ' loss,' whether much 
or little ; because the country is not entitled — in popu- 
lar phrase — to ' both sides of the bargain.' The result, 
then, on this branch of our inquiry is, that, on a question 
of contract, Franklin W. Smith, and not the Grovernment^ 
is the party entitled to a verdict for damages." 

Smith Brothers contracted for 3000 tons of pig-iron, 
for shot and shell, at an average of about 25 dollars per 
ton. Before the delivery was completed the value ad- 
vanced to 42 dollars per ton ; making a gain to the 
Government of more than 40,000 dollars ; but fully this 
sum was revengefully wasted upon their persecution. 

Merchants will realize the excessive labor, perplexity 
and responsibility involved in outfit of ships of war, 
upon peremptory orders for a multiplicity of articles, at 
brief notice of a fixed hour of sailing, in a time of great 
dearth of merchandise. 



IX. 

"THE DEFENDANTS HAD AN OVATION IN THE 
CONGRATULATION OF THEIR FRIENDS AND 
FELLOW C|TIZENS."-Hon. Charles Sumner. 

In evidence of the eagerness of the citizens of Boston 
to express their satisfaction with the action of the Presi- 
dent, the following extracts, in record of the martyrdom 
of Mr. Lincoln, may be allowable. 

FROM THE BOSTON ADVERTISER, April 15, 1865. 

"The terrible tidings which were flashed over the 
wires yesterday morning of the assassination of Presi- 



95 

dent Lincoln, caused tlie deepest sadness and the most 
intense excitement among our citizens. The great joy 
and gladness which have filled the hearts of all loyal 
people were changed to sorrow and anguish by the read- 
ing of this terrible news. 

"The thousands of flags which have been for the past 
two weeks flying in honor of our Nation's happiness at 
the prospect of the near approach of honorable peace, 
were yesterday placed at half-mast and draped in 
mourning." 

H: Hi % * * 

PUBLIC MEETINQ IN TREMONT TEMPLE. 

" Upon the reception of the sad news of the death of 
our beloved President, a meeting was called in Tremont 
Temple, which was attended by an immense congrega- 
tion. The front of the platform was draped in mourning, 
and the American flag, also draped, was thrown over 
the pulpit. A fine portrait of President Lincoln was 
also placed in front of the pulpit. Franklin W. Smith, 
Esq., was called to preside. * * A fervent and 
heart-felt prayer was offered by Rev. S. F. Smith, D. D., 
the author of the National hymn 'Ameri-ca.' " 

:f; * * * * 

PROM THE BOSTON HERALD. 

"Yesterday forenoon an impromptu meeting of mer- 
chants was held at the Merchants' Exchange, and it was 
decided to have a public demonstration on the common 
in the afternoon, as a fitting close to the solemnities of 
the day. The meeting was called to order by Geo. P. 
Denny, Esq.; Charles G-. Nazro was chosen to preside. 

Remarks were made by Messrs. F. W. Smith, E. S. 
Tobey, E. N. Earns worth and others. 



96 

By three o'clock the people began to assemble on the 
Common. A procession marched through Tremont, 
Boylston, Arlington, Beacon and Park streets, to the 
Park street gate, through it, and thence along the Beacon 
street Mall, to solemn dirges by the band, to the parade 
ground, where two stands had been erected for speakers. 
In addition to the procession a vast crowd of ladies and 
gentlemen assembled and there were probably from 
fifteen to twenty thousand persons present. 

Hi H: % >{t Hi 

On stand No. 1 the Navy Yard Band commenced the 
exercises by performing a dirge. E. S. Tobey who pre- 
sided introduced the Rev. Rollin H. Neale, D.D. who 
offered prayer. Appropriate speeches were made by 
the Chairman, Hon. Josiah Quincy, Hon. Judge Russell, 
Hon. Samuel H. Walley, Rev. William Hague, D.D. and 
Rev. E. N. Kirk, D.D. 

At stand No. 2 Charles Gr. Nazro, Esq., presided. 
Gilmore's , Band played "Rest, Spirit, Rest," Rev. M. 
Mallalieu offered prayer. The speakers were the Chair- 
man, Hon. Alexander H. Rice, Rev. E. B. Webb, D.D., 
F. W. Smith, Esq. and Hon. Charles A. Phelps. 

Hi Hi Hi Hi Hi 

Thus the tragedy which closed upon the life of Abra- 
ham Lincoln, immediately upon his deliverance of the 
defendant in the above history ; — was mournfully asso- 
ciated with congratulations and cordial greetings of the: 
people of his native city. 



LBJaT3 



